CURFEW MUST NOT RING TONIGHT1:
JUDICIAL CONFUSION AND MISPERCEPTION OF
JUVENILE CURFEW LAWS
ALEXANDER KORECKY*
I. INTRODUCTION
Juvenile curfew laws are becoming exceedingly popular in the United
States, especially in the nation’s largest cities. In 2009, 85% of U.S. cities
with populations above 180,000 had some form of juvenile curfew.2
Throughout the nation in that same year, at least 500 cities had a juvenile
curfew.3 Juvenile curfews are laws—often city ordinances—which require
children under a specified age to refrain from being in public places during
specified nighttime periods.4 Juvenile curfews normally have a variety of
Copyright © 2016, Alexander Korecky.
1 ROSE HARTWICK THORPE, CURFEW MUST NOT RING TONIGHT (1867), reprinted in A
HOOSIER SAMPLER: AN ANTHOLOGY OF INDIANA WRITERS 63–64 (2000).
* I would like to thank Professor Jacqueline Orlando for her guidance and for always
being available to brainstorm. I would also like to thank Professors Dan Kobil and Mark
Brown for imparting upon me their expert constitutional knowledge throughout the past year.
More thanks to my friends Sean Heffernan and Eric Lundgren for helping me review and edit
this Comment. Last, but not least, a big thank you to my editor Rebekah Zimmerman, who
helped guide and focus my analysis all year.
2 Tony Favro, Youth Curfews Popular with American Cities But Effectiveness and
Legality Are Questioned, CITY MAYORS SOC’Y (July 21, 2009), http://www.citymayors.com/
society/usa-youth-curfews.html.
3 Id.
4 Note, Juvenile Curfews and the Major Confusion Over Minor Rights, 118 HARV. L.
REV. 2400, 2400 (2005) [hereinafter Major Confusion Over Minor Rights]. See, e.g.,
Bykofsky v. Borough of Middleton, 401 F. Supp. 1242 (M.D. Pa. 1975). The curfew
ordinance in the Bykofsky case is typical:
The curfew ordinance prohibits any minor under the age of eighteen
from being on or remaining in or upon the streets within the Borough of
Middletown between the hours of 10:00 P.M. (minors under twelve years
of age), 10:30 P.M. (minors twelve or thirteen years of age), or 11:00
P.M. (minors fourteen through seventeen years of age) and 6:00 A.M.,
unless the minor comes within one of the following exceptions:
(a) The minor is accompanied by a parent (defined to include a legal
guardian, a person who stands in loco parentis, or a person to whom legal
custody has been given by court order);
(b) The minor is accompanied by an adult authorized by the parent to
take the parent’s place in accompanying the minor for a designated period
of time and specific purpose within a specified area;
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(c) The minor is exercising first amendment rights protected by the
Constitution, such as free exercise of religion, freedom of speech, and the
right of assembly, provided the minor first has given notice to the Mayor
of the Borough by delivering to the communications center personnel at
the Borough Municipal Building a written communication signed by the
minor and countersigned if practicable by a parent of the minor which
specifies when, where, in what manner, and for what first amendment
purpose the minor will be on the streets at night during the curfew time
period;
(d) In a case of reasonable necessity but only after the minor's parent
has communicated to the Middletown police station personnel “the facts
establishing such reasonable necessity relating to specified streets at a
designated time for a described purpose including points of origin and
destination”;
(e) The minor is on the sidewalk of his residence, or on the sidewalk
of either next-door neighbor, so long as the neighbor does not object to
the minor's presence on his sidewalk;
(f) The minor is returning home by a direct route from, and within
thirty minutes of the termination of, a school activity or an activity of a
religious or other voluntary association, provided prior notice of said
activity and the place and probable time of termination has been given in
writing to the Chief of Police or the officer assigned by him on duty at
the police station;
(g) The minor has been authorized, by special permit obtained from
the Mayor, to be on the streets during the curfew hours for normal or
necessary nighttime activities inadequately provided for by other
exceptions in the ordinance;
(h) The minor is a member of a group of minors permitted by a
“regulation” issued by the Mayor to be on the streets during the curfew
hours for normal or necessary nighttime activities inadequately provided
for by other exceptions in the ordinance, there being too many persons
involved for use of the individualized permit procedure of exception (g)
above;
(i) The minor carries a certified card of employment;
(j) The minor is in a motor vehicle with parental consent for normal
travel, with interstate travel through Middletown excepted in all cases
from the curfew;
(k) A minor is seventeen years of age and is excepted from the curfew
by “formal rule” promulgated by the Mayor excepting designated minors,
minors in a defined group or area, or all minors seventeen years of age.
The ordinance further provides that it is unlawful for a parent having
legal custody of a minor knowingly to permit or by inefficient control to
allow such minor to be on or remain upon the street in violation of the
curfew. “Knowingly” is defined as including knowledge which a parent
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exceptions, such as the exercise of First Amendment protected speech,
which excuse minors from adjudication.5
Proponents of juvenile curfews assert that juvenile curfew laws support
the governmental interests of preventing juvenile crime and preventing
juvenile victimization.6 Detractors of juvenile curfews assert, in part, that
these laws do not further the aforementioned governmental interests and
even have detrimental effects to juveniles.7 Moreover, federal and state
courts disagree about how to analyze the constitutionality of juvenile curfew
laws.8 In short, the proper standard for juvenile curfew analysis is uncertain,
and, therefore, the Supreme Court of the United States must reassert its
authority by providing lower courts additional guidance in this very specific
area of constitutional jurisprudence.
The Court must accept a juvenile curfew case to resolve the
inconsistencies among lower courts, because disparate juvenile curfew
jurisprudence nationwide has led to a breakdown of any semblance of legal
should reasonably be expected to have concerning the whereabouts of a
minor in his legal custody. When the police find a minor in prima facie
violation of the curfew, the ordinance provides that the minor shall be
taken to the police station, the parent called, and the parent and minor
interrogated to determine the relevant facts, after which the minor is to
be released to the parent’s custody. If the parent cannot be located or
fails to take charge of the minor, the juvenile is released to the juvenile
authorities.
In the case of a first violation by a minor, the police send his parents
by certified mail written notice of the violation, warning them that further
violations will result in imposition of the penalty provided for in the
ordinance. Upon a second violation, a fine of twenty-five dollars plus
costs of prosecution is imposed upon the parents, with the fine increasing
in twenty-five dollar increments for each successive violation. Refusal
to pay the fine and costs results in imprisonment in the Dauphin County
prison for a period not to exceed ten days. Any minor who violates the
curfew ordinance more than three times shall be reported by the Mayor
to a society or organization whose purpose it is to take charge of
incorrigibles and delinquents and proceedings shall then be taken, under
the Juvenile Act, 11 P.S. § 50-101 et seq., before the juvenile court for
the treatment, supervision, and rehabilitation of the minor.
Id. at 1246.
5 See Major Confusion Over Minor Rights, supra note 4, at 2404.
6 David A. Herman, Note, Juvenile Curfews and the Breakdown of the Tiered Approach
to Equal Protection, 82 N.Y.U. L. REV. 1857, 1860 (2007).
7 Major Confusion Over Minor Rights, supra note 4, at 2404–05.
8 See id. at 2421 (“The [juvenile curfew] split involves wildly varying standards of
review, significant disagreement over the rights at issue, and dramatic differences in the way
in which cities must prove the need for a curfew.”).
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uniformity, and a breadth of empirical studies suggests juvenile curfews
often lack the efficacies the government asserts they provide. Part II
explains Court doctrine commonly applied to juvenile curfew laws and
reviews curfew challenges heard before U.S. circuit courts of appeals and,
more recently, in state courts. Part III explains the inconsistencies of
juvenile curfew analysis among the various courts. Part III also explains,
via social commentary and empirical evidence, how stereotypes and illogical
misconceptions regarding the effectiveness of juvenile curfews fuel support
for such laws.
II. BACKGROUND
A. Juvenile Curfew Laws in the United States
Omaha, Nebraska adopted the first curfew in 1880.9 Nearly 100 years
later, in 1975, a federal court heard the first juvenile curfew challenge in
Bykofsky v. Borough of Middleton.10 In Bykofsky, the trial court heard
various constitutional challenges to a juvenile curfew ordinance, including
that it was unconstitutionally vague, it violated several fundamental rights
of minors, it encroached on the constitutional right of parents to raise
children, and it violated the right of family autonomy.11 After “delet[ing]”
vague12 phrases from the ordinance, the trial court upheld the ordinance as
constitutional.13
The appellate court affirmed without issuing an opinion,14 and the
plaintiffs’ petition for certiorari to the Supreme Court of the United States
was subsequently denied.15 Dissenting, Justice Marshall—joined by Justice
Brennan—forecasted the important constitutional questions presented by
juvenile curfew laws.16 Indeed, courts have found little uniformity in
solving the important First Amendment questions that juvenile curfews
pose.
9
Favro, supra note 2.
401 F. Supp. 1242 (M.D. Pa. 1975), aff’d, 535 F.2d 1245 (3d Cir. 1976), cert. denied,
429 U.S. 964 (1976).
11 Id. at 1248.
12 Id. at 1252–53. See infra text accompanying note 23–24 for an explanation of
“vagueness.”
13 Id. at 1266.
14 535 F.2d at 1245.
15 Bykofsky v. Borough of Middleton, 429 U.S. 964, 964 (1976).
16 Id. at 965–66 (Marshall, J., dissenting) (“Because I believe this case poses a substantial
constitutional question—one which is of importance to thousands of towns with similar
ordinances—I would grant a writ of certiorari.”).
(continued)
10
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B. Relevant Constitutional Principles
Since Bykofsky, many federal and state courts have heard challenges to
the constitutionality of juvenile curfews, but no consensus has emerged.17
To understand this split, one must first understand the legal tests courts
typically apply to juvenile curfew challenges.
Courts often test the constitutionality of juvenile curfews by applying
either strict or intermediate scrutiny.18 Strict scrutiny requires a law to be
justified by a compelling governmental interest and the least restrictive
means of advancing that interest.19 Intermediate scrutiny requires a law to
be supported by an important governmental interest and substantially related
to advancing that interest.20 If a challenged law fails to satisfy the applicable
tier of scrutiny—either strict or intermediate—a court must declare the law
unconstitutional and invalidate it.21 In addition to the scrutiny analysis,
courts often use the so-called Bellotti factors, which provide analytical
framework for laws affecting constitutional rights of minors.22 Moreover—
although not the focus of this Comment—juvenile curfew laws have often
been challenged on grounds of vagueness.23 A law is unconstitutionally
vague if it either (1) does not provide citizens adequate notice of what
behavior is and is not prohibited; or (2) encompasses so much activity that
it allows for arbitrary or discriminatory enforcement by police officers.24
17
See, e.g., Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003); Qutb v. Strauss, 11
F.3d 488, 490 (5th Cir. 1993); Treacy v. Municipality of Anchorage, 91 P.3d 252, 256 (Alaska
2004); State v. Doe, 231 P.3d 1016, 1020 (Idaho 2010).
18 See, e.g., Schleifer v. City of Charlottesville, 159 F.3d 843, 847 (4th Cir. 1998) (holding
that intermediate scrutiny is the “most appropriate” test); Nunez v. City of San Diego, 114
F.3d 935, 946 (9th Cir. 1997) (electing to apply strict scrutiny). But see Hodgkins v. Peterson,
355 F.3d 1048, 1059 (7th Cir. 2004) (deciding to apply the O’Brien test) (see infra Part II.B.3
for a description of the O’Brien test); Sale v. Goldman, 539 S.E.2d 446, 456 (W. Va. 2000)
(applying rational basis review). Rational basis review is highly deferential to the
government and is the least demanding tier of scrutiny. See F.C.C. v. Beach Commc’ns, Inc.,
508 U.S. 307, 313–14 (1993). “In areas of social and economic policy, a [law] that neither
proceeds along suspect lines nor infringes fundamental constitutional rights must be
upheld . . . if there is any reasonably conceivable state of facts that could provide a rational
basis for the [law].” Id. at 313 (citations omitted).
19 Romer v. Evans, 517 U.S. 620, 631 (1995).
20 United States v. Virginia, 518 U.S. 515, 533 (1996).
21 See Clark v. Jeter, 486 U.S. 456, 461 (1988).
22 See Bellotti v. Baird, 443 U.S. 622, 634 (1979) (plurality opinion). See also infra Part
II.B.3.
23 See, e.g., Hutchins v. District of Columbia, 188 F.3d 531, 546–47 (D.C. Cir. 1999)
(discussing appellees’ vagueness claim); Schleifer, 355 F.3d at 853 (considering plaintiffs’
vagueness claim).
24 See City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
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1. Strict Scrutiny: The Most Stringent Review
The Fourteenth Amendment’s Equal Protection Clause guarantees and
protects certain fundamental rights.25 When a law infringes upon a
fundamental right that the Fourteenth Amendment protects, courts
determine the constitutionality of the challenged law by applying the strict
scrutiny test.26 To satisfy strict scrutiny, a law must be (1) justified by a
compelling governmental interest;27 and (2) the least restrictive means
available to advance that compelling governmental interest28 (or, as it is
often referred, “narrowly tailored”29). In applying strict scrutiny, courts
U.S. CONST. amend. XIV, § 1 (“No state shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”). See, e.g., Jones v. Helms, 452 U.S. 412, 417–
18 (1981) (discussing the fundamental right to travel); New York Times, Co. v. Sullivan, 376
U.S. 254, 275 (1964) (discussing the fundamental right to free speech); Marron v. United
States, 275 U.S. 192, 195 (1927) (explaining that “[g]eneral searches . . . violate fundamental
rights”).
26 See Romer v. Evans, 517 U.S. 620, 631 (1995) (explaining “[strict scrutiny applies] if
a law . . . burdens a fundamental right . . . or targets a suspect class”). See also Stephen A.
Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AM. J. LEGAL
HIST. 355, 355 (2006). Siegel explains that strict scrutiny is applied “whenever government
employs a suspect classification, burdens a fundamental interest, or adopts a content-based
regulation of speech.” Id. (emphasis added) (footnote omitted) (citations omitted). Other
scholars describing strict scrutiny note, “Because the government is impinging upon
someone’s core constitutional rights, only the most pressing circumstances can justify the
government action.” Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 800 (2006) (footnote
omitted) (citation omitted).
27 See Winkler, supra note 26, at 800. Winkler explains that “the Court uses compelling
in the vernacular to describe [the] societal importance of the government’s reasons for
enacting the challenged law.” Id. (footnote omitted) (citations omitted) (internal quotation
marks omitted).
28 See Siegel, supra note 26, at 360. Siegel explains,
25
Strict scrutiny’s narrow tailoring requirement provides a means to
examine the government’s precision of regulation, allowing the Court to
uphold government action only if . . . it is necessary to achieve . . . [the]
compelling interest that the government has asserted as the purpose of its
action. Narrow tailoring demands that the fit between the government’s
action and its asserted purpose be as perfect as practicable. Strict
scrutiny’s narrow tailoring requirement means that legislation must be
neither overinclusive nor underinclusive.
Id. (alteration in original) (footnotes omitted) (citations omitted) (internal quotation marks
omitted).
29 See id. at 359–60. Siegel also explains how “[s]trict scrutiny . . . impos[es] three
hurdles on the government. It shifts the burden of proof to the government; requires the
government to pursue a compelling state interest; and demands that the regulation promoting
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usually find challenged laws unconstitutional because of the test’s rigorous
demands.30
Strict scrutiny has been applied to analyze the constitutionality of
juvenile curfews in two notable federal appellate court cases. In Nunez v.
City of San Diego,31 a group of minors facially challenged the
constitutionality of San Diego’s curfew ordinance, asserting the ordinance
prevented them from participating in otherwise lawful activities.32 The
Ninth Circuit found that reducing juvenile crime and juvenile victimization
were sufficiently compelling interests to uphold the ordinance.33 The city’s
data “provide[d] some, but not overwhelming, support for the proposition
that a curfew will help reduce crime.”34 However, the court determined the
curfew’s exceptions did not satisfy strict scrutiny’s “narrowly tailored”
requirement because the ordinance “excessively burdened” minors’ rights to
the compelling interest be narrowly tailored.” Id. (footnotes omitted) (citations omitted)
(internal quotation marks omitted).
30 Herman, supra note 6, at 1864. “If a court applies strict scrutiny, the government will
virtually always lose: While it is usually easy for the government to articulate a compelling
interest, the court will typically find a way in which the legislation is not narrowly tailored.”
Id. (footnotes omitted) (citations omitted) (internal quotation marks omitted). See also
Winkler, supra note 26, at 815 (estimating that laws fail strict scrutiny in fundamental rights
cases about 75% of the time).
31 114 F.3d 935 (9th Cir. 1997).
32 Id. at 939.
Plaintiff minors allege, among other things, that the ordinance restricts
them from many otherwise lawful activities after curfew hours, i.e.,
volunteering at a homeless shelter, attending concerts as a music critic,
studying with other students, meeting with friends at their homes or in
coffee houses, stopping at a restaurant to eat dinner after serving on the
School District Board, auditioning for theater parts, attending ice hockey
practice, practicing astronomy, and dancing at an under-21 dance club.
Id.
33 Id. at 946 (“The City has a compelling interest in protecting the entire community from
crime, including juvenile crime. The City’s interest in protecting the safety and welfare of
its minors is also a compelling interest.”).
34 Id. at 947–48. The data included a national Justice Department report that showed a
rising juvenile crime rate nationwide (but no information specific to San Diego), a drop in
juvenile victimization during the curfew hours during the first quarter of 1996, and a greater
increase in arrests for violent crimes during curfew hours during that same quarter. Id.
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free movement and free speech.35 The court held the ordinance
unconstitutional.36
In Qutb v. Strauss, a group of minors, by and through their parents,
facially challenged Dallas’s curfew ordinance only two weeks after it was
enacted, seeking an injunction against enforcement of the curfew, alleging
the curfew unconstitutionally impinged upon the minors’ right to “move
about freely in public.” 37 The Fifth Circuit found Dallas’s asserted interests
of “reduc[ing] juvenile crime and victimization while promoting juvenile
safety and well-being” to be compelling.38 Regarding strict scrutiny’s
second prong of narrow tailoring, the court found Dallas’s general crime
statistics sufficiently persuasive.39 Despite plaintiff’s contentions that
Dallas presented no proof of either a nocturnal juvenile crime problem or
the effectiveness of juvenile curfews, the court “[would] not . . . insist upon
detailed studies . . . [on] juvenile crime [and curfews] . . . in analyzing
whether the ordinance meets constitutional muster.”40 Instead, the court
held, “[T]he defenses [to enforcement of the curfew] are the most important
consideration in determining whether this ordinance is narrowly tailored.”41
The several exceptions also aided the court’s determination that the curfew
was sufficiently narrowly tailored to Dallas’s asserted interests, and the court
upheld the curfew as constitutional.42
35
Id. at 948.
[The] ordinance is problematic because it does not provide exceptions for
many legitimate activities, with or without parental permission. This is
true even though minors may be uniquely vulnerable at night; the
curfew’s blanket coverage restricts participation in, and travel to or from,
many legitimate recreational activities even those that may not expose
their special vulnerability.
Id.
36
Id. at 952.
11 F.3d 488, 491–92 (5th Cir. 1993).
38 Id. at 492. “The Supreme Court has recognized that the state has a strong and legitimate
interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of
judgment may sometimes impair their ability to exercise their rights wisely.” Id. (citations
omitted) (internal quotation marks omitted).
39 The city presented statistics showing that juvenile curfew increases proportionally
between ages ten and sixteen; in 1990 there were 5,425 juvenile arrests; murders, assault, and
rape are more likely to occur between 10 p.m. until 3 a.m.; and 31% of robberies occur on
streets and highways. Id. at 493.
40 Id. at 493 n.7 (adhering to Bellotti Approach Two, see infra Part II.B.4, by declaring
the court would not demand more statistical proof because “it is conceded that the juvenile
crime problem in Dallas constitutes a compelling state interest”).
41 Id. at 493–94.
42 Qutb, 11 F.3d at 494–95.
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More recently, the Massachusetts Supreme Judicial Court used strict
scrutiny to strike down a juvenile curfew ordinance. In Commonwealth v.
Weston W., a group of minors challenged the constitutionality of a curfew
after they were arrested for being in public after midnight.43 After the
plaintiffs conceded that the state’s interests were compelling,44 the court
found the curfew’s exceptions sufficient to satisfy strict scrutiny’s narrowly
tailored prong.45 However, the court held the curfew’s criminal penalty
unconstitutional because it infringed upon the right to freedom of
movement.46 After holding unconstitutional the criminal penalties of the
ordinance, the court found the remainder of the curfew constitutional.47
2. Intermediate Scrutiny: The Zone of Twilight
When a law does not infringe upon a fundamental right, but nonetheless
impinges upon an important right or interest, courts often apply the
intermediate scrutiny test.48 To pass intermediate scrutiny, a law must be
(1) justified by an important governmental interest; and (2) substantially
related to advancing that important governmental interest.49 Intermediate
scrutiny is a “zone of twilight”: it involves a “flexible balancing of the
43
913 N.E.2d 832, 836 (Mass. 2009).
Id. at 842.
45 Id. at 842–43 (explaining that the curfew’s exceptions, along with local and national
crime data evidencing an increase in juvenile crime, satisfied narrowly tailoring).
46 See id. at 845. The court reasoned that “criminal prosecution of a minor . . . is an
extraordinary and unnecessary response to what is essentially a status offense, and is contrary
to the State’s treatment of similar conduct.” Id.
44
[Lowell] has failed to meet its burden to show that the use of criminal
penalties provides an increased benefit over the civil enforcement
mechanisms of the ordinance sufficient to offset their greater intrusion
on the fundamental right. In other words, [Lowell] has failed to
demonstrate that the use of the criminal process and penalties is the least
restrictive means of accomplishing its legitimate objective.
Id. at 844–46.
47 Id.
48 See Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First
Amendment Jurisprudence, 2007 U. ILL. L. REV. 783, 783 (2007) (“[S]o important and
ubiquitous has intermediate scrutiny become that Justice Scalia has described it as a ‘default
standard,’ and it has been the standard of review in countless significant Supreme Court and
courts of appeals cases over the past quarter century.”).
49 See Jay D. Wexler, Defending the Middle Way: Intermediate Scrutiny as Judicial
Minimalism, 66 GEO. WASH. L. REV. 298, 317–18 (1998). Wexler explains that “[t]he
intermediate scrutiny formulation ordinarily requires the government to demonstrate that the
law in question serves actual, important governmental objectives and is closely related to the
achievement of those objectives.” Id. (footnotes omitted) (citations omitted).
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State’s interests against the individuals.”50 In applying intermediate
scrutiny, courts strike down challenged laws less frequently than when using
strict scrutiny.51
Three notable federal circuit cases have applied intermediate scrutiny to
juvenile curfew ordinances. In Schleifer v. City of Charlottesville,52 a group
of minors challenged a curfew, alleging the curfew prevented them from
engaging in otherwise constitutionally protected, lawful activities. The
Fourth Circuit found the government’s interests satisfied intermediate
scrutiny’s “important interest” prong.53 On the “substantially related”
prong, the court found Charlottesville’s data54 to be persuasive and
determined the curfew passed intermediate scrutiny.55 Therefore, the court
held the curfew constitutional.56
In Ramos v. Town of Vernon, two brothers challenged a curfew after
being cited with multiple curfew violations, even though they had
permission from their mother to be out, activity for which the curfew failed
to provide an exception.57 The Second Circuit found the government’s
50 Herman, supra note 6, at 1864–65. Wexler articulates, “[I]ntermediate scrutiny
requires the [c]ourt to weigh conflicting rights and interests and does not predetermine the
outcome of the case.” Wexler, supra note 49, at 300 (footnote omitted) (citations omitted).
51 See id.; Wexler, supra note 49, at 318.
52 159 F.3d 843, 846 (4th Cir. 1998).
The minors allege that, with their parents’ permission, they occasionally
wish to engage in lawful activities which the curfew will not permit.
These activities include attending late movies; getting a “bite to eat”;
playing in a band; socializing with older siblings; and attending concerts
in Richmond, which would bring them back through Charlottesville
during curfew hours.
Id.
53
See id. at 847–48 (citations omitted) (explaining how the interests of (1) reducing
juvenile crime and violence and (2) preventing juvenile victimization satisfy intermediate
scrutiny because Supreme Court jurisprudence establishes the importance of “protecting the
community from crime” and “fostering the welfare of children”).
54 See id. at 849 (Charlottesville’s city council considered “many sources, including
records from [the city’s] police department, a survey of public opinion, news reports, data
from the United States Department of Justice, national crime reports, and police reports from
other localities.”). Particularly persuasive was data indicating juvenile offenses between
11:00 p.m. and 6:00 a.m. increased by 38% during 1995 and an additional 10% in 1996. Id.
at 850.
55 See id. at 852 (reasoning that the curfew would also survive strict scrutiny).
56 Id. at 855.
57 353 F.3d 171, 173 (2d Cir. 2003).
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professed interests sufficiently important.58 However, Vernon failed to
prove the curfew was substantially related to those interests.59 The court
struck down the ordinance as unconstitutional.60
In Hutchins v. District of Columbia, a group of minors sought
invalidation of a curfew, alleging it impinged upon their fundamental
rights.61 The D.C. Circuit found important the government’s asserted
interests of reducing juvenile crime, victimization, and promoting parental
responsibility.62 The court also found the curfew substantially related to the
asserted important government interests because of the data supporting it63
and its exceptions.64 The court’s constitutional review allowed the
Id. at 181–82 (explaining “protecting minors from harm at night” and “protecting the
general population from nighttime juvenile crime . . . . may take on added strength in light of
attributes particular to children”).
59 Id. at 186.
58
The defendants have the burden of proof under the intermediate scrutiny
standard, and they failed to present any persuasive reason for the curfew
hours chosen by the town. In fact, there is a disconnect between the proof
of purportedly problem hours and the curfew hours set out in the
ordinance.
Id.
60 Id. (holding that “[b]ecause defendants have failed to demonstrate that Vernon’s curfew
ordinance is substantially related to an important governmental interest, . . . it is
unconstitutional as applied”).
61 188 F.3d 531, 535 (D.C. Cir. 1999) (plurality opinion).
62 Id. at 541–42.
The District presented reams of evidence depicting the devastating
impact of juvenile crime and victimization in the District—the juvenile
violent crime arrest rate for juveniles ages 10 to 17 was higher than that
in any state and was more than three times the national average, the
District had the highest violent death rate for teens ages 15 to 19, which
was four times the national average, and the District was ranked dead
last, almost three times worse than the worst state, in children’s overall
well-being. . . . This was the abysmal situation confronting the District
when it voted to adopt the curfew law. Statistics showed the situation
worsening. Given this picture[,] . . . there can be no serious dispute that
protecting the welfare of minors by reducing juvenile crime and
victimization is an important government interest.
Id. (citations omitted) (citing statistics that showed a “dramatic increase in juvenile arrests
for, inter alia, aggravated assault, murder, and carrying a dangerous weapon”).
63 Id. at 543–44 (The court acknowledged, “[T]he District’s statistics indicate that more
than 50% of juvenile arrests took place during curfew hours. . . . That a substantial percentage
of violent juvenile victimizations (approximately 33%) occurred on the streets adequately
supports the relationship between the government’s interest and the imposition of the
curfew.”).
64 Id. at 545. The court noted,
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government to use data from other jurisdictions in support of its curfew. 65
The court upheld the curfew as constitutional.66
More recently, the New York Court of Appeals used intermediate
scrutiny to strike down a juvenile curfew ordinance in Anonymous v. City of
Rochester, where a minor challenged the facial constitutionality of the
ordinance.67 The court found the interests of preventing juvenile crime and
victimization to be sufficiently important.68 However, the court found the
city’s data insufficient to justify a substantial relation between the curfew
and the claimed interests.69 The court explicitly rejected the dissent’s view
that the curfew was substantially related to the state’s interests because “it is
enough that from 2000 to 2005 a number of juveniles were victimized a
night.”70 The court found this argument unpersuasive because “the same
[T]he eight defenses to the curfew strengthen the relationship between
the curfew and its goal of reducing juvenile crime and victimization by
narrowing the scope of the curfew. That is, the defenses . . . help ensure
that the ordinance does not sweep all of a minor’s activities into its ambit
but instead focuses on those nocturnal activities most likely to result in
crime or victimization.
Id.
65 Id. at 544 (The court found that “[Plaintiffs’] claim that the District was not entitled to
rely on curfew experiences in other cities [was] . . . particularly weak. Of course no city is
exactly comparable to any other, but it would be folly for any city not to look at experiences
of other cities.”).
66 Id. at 548.
67 915 N.E.2d 593, 595–96 (N.Y. 2009).
68 See id. at 599 (finding that “[preventing juvenile crime and victimization] easily falls
within the realm of the government’s legitimated concern”).
69 Id.at 599–600. The court concluded,
[T]he crime statistics produced by defendants do not support the
objectives of Rochester’s nocturnal curfew. Although the statistics show
that minors are suspects and victims in roughly 10% of violent crimes
committed between curfew hours (11:00 P.M. to 5:00 A.M.), what they
really highlight is that minors are far more likely to commit or be victims
of crime outside curfew hours and that it is the adults, rather than the
minors, who commit and are victims of the vast majority of violent crime
(83.6% and 87.8% respectively) during curfew hours. The crime
statistics are also organized by days of the week and despite that minors
are 64% to 160% more likely to be a victim and up to 375% more likely
to be a suspect of violent crimes on Saturdays and Sundays as compared
to a given weekday, surprisingly, the curfew is less prohibitive on
weekends. We also note that the methodology and scope of the statistics
are plainly over-inclusive for purposes of studying the effectiveness of
the curfew.
Id. at 600 (footnotes omitted).
70 Id. at 600.
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statistics would justify, perhaps even more strongly, imposing a juvenile
curfew during all hours outside of school since far more victimization occur
[sic] during those hours.”71 The record before the court evidenced
“extensive affidavits of public officials who were involved in the adoption
of the curfew ordinance, and the reports of experienced police officers
responsible for its enforcement, which describe the considerable amount of
investigation and research that was carried out before the City Council
adopted the ordinance.”72 The record included crime statistics for the city
as well as evidence of the effectiveness of other jurisdiction’s curfews. 73
Additionally, the record indicated that 45% of homicides in Rochester
occured during the curfew hours, even though the curfew hours comprised
only 25% of the hours during a week.74 Despite this extensive data, the court
determined the curfew failed intermediate scrutiny and held it
unconstitutional.75
3. The O’Brien Test
First articulated by the Supreme Court of the United States in 1968,
courts sometimes apply the O’Brien test when a law governs conduct but
incidentally burdens freedom of expression.76 The O’Brien test has four
parts, combining inquiries similar to strict and intermediate scrutiny. 77 The
O’Brien test requires
(1) that the regulation is within the constitutional power of
the government; (2) that it furthers an important or
substantial governmental interest; (3) the governmental
interest must be unrelated to the suppression of free
expression (in other words, content neutral); and (4) the
incidental restriction on alleged First Amendment freedoms
must be no greater than is essential to the furtherance of that
interest.78
71
Id.
Id. at 606.
73 Id.
74 Id.
75 Id. at 600–01 (concluding the curfew failed intermediate scrutiny’s “substantially
related” prong).
76 See United States v. O’Brien, 391 U.S. 367, 376 (1968) (“This Court has held that when
‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.”).
77 Hodgkins v. Peterson, 355 F.3d 1048, 1059 (7th Cir. 2004).
78 Id. (citing O’Brien, 391 U.S. at 377). The O’Brien test is a level of review falling
somewhere between intermediate scrutiny and strict scrutiny. See id. at 1060.
(continued)
72
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In Hodgkins v. Peterson, Colin Hodgkins challenged a curfew ordinance
after he was arrested while leaving a restaurant at 11:00 p.m., where he was
eating with friends after a high school soccer game.79 The police handcuffed
him, and he was taken to a processing site.80 There, he was forced to take a
breathalyzer test and give a urine sample and was asked intrusive personal
questions, such as whether he attended church.81 He was not released until
1:30 a.m.82
The Seventh Circuit applied the O’Brien test to determine the
constitutionality of a juvenile curfew law.83 The court found the real issue
to be O’Brien’s fourth prong, inquiring “whether the nexus between the
curfew law and those significant governmental interests is close enough to
pass constitutional muster.”84 The court did not find the curfew’s First
Amendment defense sufficient to eliminate the curfew’s incidental burden
on speech.85 The court further explained that even with the First
Amendment defense, the curfew law unconstitutionally burdened First
79
Id. at 1051.
Id.
81 Id. at 1051–52.
82 Id. at 1052.
83
Id.
84 Id. at 1060.
80
Whether we call it “narrowly tailored” or “no more burden-some than is
essential” is of no moment. We look to see whether the curfew law is no
more restrictive than necessary to further the governmental interest. . . .
Under the “no more restrictive than necessary” standard, the
“[g]overnment may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its
goals.”
Id. (footnotes omitted) (citations omitted).
85 See id.
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Amendment expression.86 Accordingly, the curfew law failed the O’Brien
test, and the court struck the statute down as unconstitutional.87
More recently, in State v. Doe,88 the Idaho Supreme Court upheld a
constitutional challenge to a juvenile curfew ordinance.89 Much like the
Hodgkins court, the Idaho court found the fourth prong of the O’Brien test
to be determinative.90
However, in applying the O’Brien test, the court’s analysis varied
significantly from that in Hodgkins. Despite its minimal exceptions (and
failure to contain a First Amendment expression exception), the court upheld
the curfew ordinance under the O’Brien test.91 The court found “no serious
86
See id. at 1060–62.
[T]here 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. . . .
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 [curfew’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.
Id. at 1060–61 (citation omitted) (internal quotation marks omitted).
87 See id. at 1062–64.
[T]he curfew law, even with the new affirmative defenses for First
Amendment activity, is not narrowly tailored to serve a significant
governmental interest and fails to allow for ample alternative channels
for expression. The statute restricts a minor’s access to any public forum
during curfew hours, and the affirmative defense for participating in First
Amendment activities does not significantly reduce the chance that a
minor might be arrested for exercising his First Amendment
rights. . . . The concrete possibility of arrest at the same time makes clear
that the statute unduly chills the exercise of a minor’s First Amendment
rights.
Id. at 1064–65.
88 231 P.3d 1016 (Idaho 2010)
89 Id. at 1034.
90 Id. at 1023, 1026.
91 Id.
The Ordinance does not reach an amount of conduct that is greater
than necessary to further the City of Wendell’s interests. . . . [T]he City
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doubt that the government ha[d] a compelling interest.”92
concluded the ordinance passed strict scrutiny.93
[44:831
The court
4. The Bellotti Factors: A Source of Confusion
In Bellotti v. Baird,94 the Supreme Court of the United States held that,
under the Equal Protection Clause of the U.S. Constitution, the government
may treat minors’ rights differently than adults’ rights.95 The Court
explained the government might afford minors’ rights less protection for the
following three reasons: (1) minors have a “peculiar vulnerability”; (2)
minors have an “inability” to make decisions in an “informed, mature
manner”; and (3) “the importance of the parental role in child rearing.”96
of Wendell has an interest in the physical and psychological well-being
of minors, which is a compelling government interest, and the Ordinance
appears to further that interest. Further, the City has a compelling interest
in ensuring the health and safety of its citizens. The Ordinance, as
opposed to [that] presented in Nunez, . . . contains a provision allowing a
child to be in public without the presence of a parent or custodian so long
as the child has some form of documented authorization. Doe has not
shown that this authorization would not allow children to assert their First
Amendment rights. Doe has also failed to show that the Ordinance would
reach constitutionally protected conduct in a substantial portion of the
cases where it would apply. In many instances, a juvenile cited under the
Ordinance, like Doe, would be out looking for a party or engaging in
some other nonprotected activity, which is clearly prohibited.
Id. at 1026–27.
92 Id. at 1032. The court reasoned that “such interests are encompassed within [the
ordinance’s] stated purpose, which is to promote the welfare and safety of the public.” Id. at
1024. In addition, the Supreme Court of the United States “has recognized that the physical
and psychological well-being of minors is a compelling government interest.” Id. at 1032
(citation omitted).
93 Id. at 1032–33.
[G]iven the substantial State interest in preventing juveniles from making
decisions that could be detrimental to their growth and development, the
breadth of the Ordinance is the most effective means of effectively
protecting juveniles. The Ordinance already allows parents to exempt
their children from the Ordinance when they determine that the children
have legitimate business during curfew hours. . . . Accordingly, we find
that the Ordinance is enacted through the least restrictive means
necessary to vindicate the government interest at issue. As a result, the
Ordinance does not result in the deprivation of a fundamental right.
Id. at 1032–33.
94 443 U.S. 622 (1979) (plurality opinion).
95 Id. at 634. The Court also declared that “[a] child, merely on account of his minority,
is not beyond the protection of the Constitution.” Id. at 633.
96 Id. at 634.
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Because of this treatment, lower courts disagree as to exactly how Bellotti
affects the strict–intermediate scrutiny analysis in situations implicating the
rights of minors.97 Some courts reduce strict scrutiny to intermediate
scrutiny by using what this Comment denominates as “Bellotti Approach
One.”98 Other courts choose to select a tier of scrutiny and then use what
this Comment denominates as “Bellotti Approach Two” to demand a lower
connective nexus between the government’s asserted interest and the
juvenile curfew’s means of furthering that interest.99 However, neither
approach has had dispositive application in tier-of-scrutiny analysis or the
constitutionality issue in general.100
III. ANALYSIS
This Part analyzes how courts diverge on the proper analysis of juvenile
curfews and why juvenile curfews generate support within both legislatures
and communities, respectively. Section A analyzes the disagreement
between state and federal courts.101 Section B operates under the assumption
that courts should analyze juvenile curfew laws under a true intermediate
scrutiny that demands a direct and material connection.102 In applying
97 See Major Confusion Over Minor Rights, supra note 4, at 2411 (explaining that “[t]here
are traditionally two divergent approaches to the appropriate use of the Bellotti factors in
analyzing juvenile curfews”).
98 See id. “[One] approach [to Bellotti] reasons that Bellotti determines the situations in
which juveniles have lesser rights, so that when Bellotti factors are applicable, a lower
standard of scrutiny is appropriate.” Id. (footnote omitted) (citation omitted). “Some
courts . . . have interpreted Bellotti as meaning that, even though minors may have
constitutional rights . . . , curfews that burden such rights are subject only to some
intermediate level of judicial scrutiny if the Bellotti factors are present.” Daniel M. Blau,
Juvenile Curfews: Constitutional Concerns and Recommended Remedies, 72 POPULAR GOV’T
25, 26 (Spring/Summer 2007) (footnote omitted) (citations omitted).
99 See Major Confusion Over Minor Rights, supra note 4, at 2411.
The second approach determines the applicable level of scrutiny
independently of Bellotti, and then uses Bellotti’s factors as a framework
for determining the strength of the state’s interest. If the state can prove
that its interest in the curfew relates to a relevant Bellotti factor, the
interest will receive extra weight.
Id. (footnote omitted) (citation omitted). “Other courts have held that curfews burdening
minors’ fundamental rights are subject to strict scrutiny but the presence of the Bellotti
Factors strengthens the governments compelling justification for them.” Blau, supra note 98,
at 26 (footnote omitted) (citations omitted).
100 See infra Part III.A.
101 See infra Part IV.A.
102 See Herman, supra note 6, at 1861. Herman explains that although juvenile curfews
do not burden a suspect class or Supreme-Court-defined fundamental right, “there remains a
significant class issue . . . [and] there remains a substantial liberty issue.” Id. (internal
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intermediate scrutiny, Section B presents the common justifications
supporting juvenile curfews and, in turn, refutes each one to conclusively
evidence that juvenile curfews are not substantially related to an important
governmental interest.103
A. A Juvenile Curfew Split Exists Over Supreme Court Constitutional
Jurisprudence
Many scholars demand that the Court provide guidance and establish a
uniform analysis for juvenile curfew laws.104 These scholars point to
existing divisions among federal and state courts on how to handle juvenile
curfew challenges.105
Yet, despite these differing standards of review and analytical
approaches, curfew laws share many similarities. Curfews concern similar
quotations omitted). See also id. at 1886 (suggesting juvenile curfew analysis “justif[ies]
heightened scrutiny”); id. at 1893–94 (calling for courts to use a “skeptical balancing”
approach to juvenile curfews); Patryk J. Chudy, Doctrinal Reconstruction: Reconciling
Conflicting Standards in Adjudicating Juvenile Curfew Challenges, 85 CORNELL L. REV. 518,
575 (2000) (wherein the author, after a lengthy discussion attempting to determine the
appropriate juvenile curfew constitutional standard, selects intermediate scrutiny as the
proper test).
103 See infra Part IV.B.
104 See, e.g., Orly Jashinsky, Note, Liberty for All? Juvenile Curfews: Always an
Unconstitutional and Ineffective Solution, 4 RUTGERS J. L. & PUB. POL’Y 546, 573–74
(explaining how “[j]uvenile curfew laws create troubling constitutional consequences that
have only been exacerbated by the Supreme Court’s silence”); Brian Privor, Dusk ‘Til Dawn:
Children’s Rights and the Effectiveness of Juvenile Curfew Ordinances, 79 B.U. L. REV. 415,
428 (1999) (positing “[t]o evaluate these constitutional challenges [to juvenile curfew laws],
one must first develop a coherent conception of juvenile rights—a conception the Supreme
Court has failed to clearly articulate and one upon which lower courts cannot seem to agree”);
see Major Confusion Over Minor Rights, supra note 4, at 2401, 2421 (explaining that
“[b]ecause the Supreme Court has never harmonized the circuits’ discordant voices, it is
difficult to hear any clear legal message” and positing that “[s]uch a serious circuit split on
such widespread legislation deserves attention by the Supreme Court”).
105 See, e.g., Jashinsky, supra note 104, at 552, 556 (explaining that “there is a four-way
circuit split among the appellate courts as to the constitutionality of juvenile curfew laws and
the correct level of review under which these laws should be scrutinized” and describing the
circuit split as “irreconcilable”); Major Confusion Over Minor Rights, supra note 4, at 2421
(describing how “[t]he [juvenile curfew] split involves wildly varying standards of review,
significant disagreement over the rights at issue, and dramatic differences in the way in which
cities must prove the need for a curfew”); Herman, supra note 6, at 1861, 1866–67 (explaining
that “[courts analyzing juvenile curfews] have obtained opposite results” under every type of
constitutional review and suggesting that courts struggle with juvenile curfew analysis
because courts (1) do not know which fundamental rights minors possess; and (2) struggle to
apply the tiers of scrutiny uniformly); Chudy, supra note 102, at 583 (concluding that
“[j]uvenile curfew adjudication suffers from pronounced confusions over the appropriate
constitutional standard”).
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time periods and minors of similar ages.106 They also contain many of the
same exceptions.107 Therefore, to better explain why courts disagree about
the constitutionality of seemingly similar curfew laws, this section explains
the differing treatment of Bellotti among the courts and the inconsistent
demands of scrutiny-satisfying proof.
1. A Court’s Selection of Bellotti Approaches is Not Outcome
Determinative
Courts hearing juvenile curfew challenges disagree as to Bellotti’s
implications for minors’ rights.108 Further analysis reveals the Bellotti split
extends wider than merely two distinct approaches. The courts’ selection of
Bellotti Approach One or Two has not proven dispositive. Schleifer,
Hutchins, Doe, and Anonymous explicitly reduced strict scrutiny to
intermediate scrutiny via Bellotti Approach One.109 The Schleifer, Hutchins,
106 See, e.g., Commonwealth v. Weston W., 913 N.E.2d 832, 837 (Mass. 2009) (The
Lowell, Massachusetts juvenile curfew banned all persons under age seventeen from being
in public places and establishments between 11:00 p.m. and 5:00 a.m. every night.); Qutb v.
Strauss, 11 F.3d 488, 490–91 (5th Cir. 1993) (The Dallas curfew prohibited minors under age
seventeen from being in a public place or establishment “from 11 p.m. until 6 a.m. on week
nights, and from 12 midnight until 6 a.m. on weekends.”).
107 See, e.g., Hodgkins v. Peterson, 355 F.3d 1048, 1051 (7th Cir. 2004) (The defenses to
enforcement included parental accompaniment, employment, school and religious events,
emergencies, exercise of First Amendment rights, and interstate travel); Schleifer v. City of
Charlottesville, 159 F.3d 843, 846 (4th Cir. 1998) (The exceptions included parental
accompaniment, parental errand with a signed note, interstate travel, emergencies, supervised
school and religious activities, and the exercise of First Amendment rights.).
108 See supra Part II.B.4 (describing Bellotti and how juvenile curfew jurisprudence
involves two distinct Bellotti approaches).
109 See Schleifer, 159 F.3d at 847–48 (explaining how the court applied Bellotti Approach
One and reduced strict scrutiny to intermediate scrutiny, as strict scrutiny did not apply
because “children’s rights are not coextensive with those of adults”); Hutchins v. District of
Columbia, 188 F.3d 531, 541 (D.C. Cir. 1999) (plurality opinion). The Hutchins court
explained that
Bellotti . . . necessarily suggests that something less than strict scrutiny—
intermediate scrutiny—would be appropriate here. Not only can
juveniles be thought to be more vulnerable to harm during curfew hours
than adults, but they are less able to make mature decisions in the face of
peer pressure, and are more in need of parental supervision during curfew
hours.
Id. The court in Hutchens also explains that Bellotti “means, at minimum, that a lesser degree
of scrutiny is appropriate when evaluating restrictions on minors’ activities where their
unique vulnerability, immaturity, and need for parental guidance warrant increased state
oversight.” Id. See also Idaho v. Doe, 231 P.3d 1016, 1032–33, 1026 (Idaho 2010)
(explaining how the court used Bellotti Approach One to apply a more lax version of strict
scrutiny because “[strict scrutiny analysis] is consistent with the Bellotti recognition that the
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and Doe courts held the curfews unconstitutional; however, Anonymous
reached the opposite result.110
Similarly, courts choosing Bellotti Approach Two analysis have not
yielded the same result. The Nunez, Qutb, and Weston W. courts applied
Bellotti Approach Two.111 However, the Nunez court held its curfew
unconstitutional while the Qutb and Weston W. courts found their curfews
unconstitutional.112 Additionally, the Ramos court, which applied both
Bellotti approaches (to reduce strict scrutiny to intermediate scrutiny and
give the city’s asserted interest greater weight113), held its curfew
unconstitutional.114 Finally, the Hodgkins court, which made no mention of
Bellotti whatsoever,115 also held its curfew unconstitutional.116
State may work together with parents in order to protect children from harm”); Anonymous
v. City of Rochester, 915 N.E.2d 598–99 (N.Y. 2009). In that case, the court found that,
[b]ecause the curfew is aimed primarily at minors, only peripherally
burdening parents’ rights, the reflexive labeling of a fundamental right,
and accompanying analysis under strict scrutiny, is inadequate for taking
into account the complexities and governmental concerns of this kind of
regulation. As with the minor’s due process rights, we agree that a
searching review of the curfew is required but that a strict scrutiny
analysis is not. We conclude that intermediate scrutiny, and the rationale
of Ramos, are persuasive.
Id.
110
See supra Part II.B.2.
See Nunez v. City of San Diego, 114 F.3d 935, 938–39 (9th Cir. 1997) (explaining
“Bellotti sets forth factors for determining whether the government has a greater justification
for restricting minors than adults . . . [and here], greater restrictions of minors may be
justified” because minors are more vulnerable at night and are unable to make decisions about
safety as well as adults); Qutb v. Strauss, 11 F.3d 488, 493 n.7 (5th Cir. 1993) (adhering to
Bellotti Approach Two by declaring the court would not demand more statistical proof
because “it is conceded that the juvenile crime problem in Dallas constitutes a compelling
state interest”); Commonwealth v. Weston W., 913 N.E.2d 832, 842 (Mass. 2009) (alteration
in original) (citations omitted) (internal quotation marks omitted) (explaining how the court
used Bellotti Approach Two as a way of watering down the rigorous demands of strict
scrutiny by saying the court would “recognize that the government has a countervailing
compelling interest in protect[ing] children from actual or potential harm”).
112 See supra Part II.B.
113 Ramos v. Town of Vernon, 353 F.3d 171, 181 (2d Cir. 2003). “Intermediate scrutiny
is sufficiently skeptical and probing to provide the rigorous protection that constitutional
rights deserve. . . . [I]t is flexible enough to accommodate legislation carefully drafted to
account for ‘children’s vulnerability and their needs.’” Id. (quoting Bellotti, 443 U.S. at 635).
The court also determined that, because of “the inherent differences between children and
adults, . . . strict scrutiny [is] too restrictive a test.” Id. at 179–180.
114 See supra Part II.B.
115 See generally Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004).
116 See supra note 87 and accompanying text.
(continued)
111
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In sum, courts cannot discern the meaning of Bellotti, at least in the
context of the collision between juvenile curfew challenges and the rights of
minors. Moreover, the Court has never required the use of the Bellotti
factors in a context other than for the abortion rights of minors.117 Thus, not
only do courts disagree as to the meaning of Bellotti,118 but also one cannot
convincingly say that Bellotti has a proper place in juvenile curfew
analysis.119
2. Courts Fundamentally Disagree About Which Constitutional
Standard Applies and What Level of Connective Nexus Satisfies
Each Standard
Courts nationwide apply varying standards of review (in both name and
application) to juvenile curfew challenges.120 Some courts contend strict
117
Privor, supra note 104, at 431. See also Adam W. Poff, Comment, A Tale of Two
Curfews (And One City): What Do Two Washington, D.C. Juvenile Curfews Say About the
Constitutional Interpretations of District of Columbia Courts and the Confusion Over
Juvenile Curfews Everywhere? 46 VILL. L. REV. 277, 300 (2001) (explaining that “because
the [Supreme] Court has never” discussed Bellotti outside the context of abortion, “one cannot
be absolutely certain that the Court [would] apply the Bellotti factors to juvenile curfews”).
118 See Privor, supra note 104, at 435 (suggesting that “[m]any courts have perverted” the
use of the Bellotti factors).
119 See Chudy, supra note 102, at 538–39 (footnotes omitted) (citations omitted)
Despite the teachings of Bellotti, courts adjudicating juvenile curfews
have not applied the criteria with any degree of uniformity. . . .
. . . Whatever the extent of its influence, it is important to note three
things about Bellotti. First, Bellotti was a four-justice plurality opinion
decided over twenty years ago. Hence, it remains unclear whether the
articulated three-prong framework would command a majority today.
Second, the decision does not exist within a vacuum, but rather as part of
the larger framework of Supreme Court jurisprudence adjudicating the
rights of minors. Indeed, the Bellotti decision itself relied on other
Supreme Court cases which recognized that juvenile rights were
sometimes equal to those of adults and other times they were not. Hence,
it would be reasonable to examine Bellotti’s foundations to assess its
present significance. Third, the Bellotti tripartite test has proven
unworkable and inconsistent, as illustrated by the confusion engendered
in the lower courts. Consequently, Bellotti is certainly relevant, but it
cannot be the stand-alone test for determining whether or when the courts
and legislators can treat the fundamental rights of minors as lesser than
those of adults.
Id.
120
See supra note 104 and accompanying text.
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scrutiny is the proper test.121 Yet, courts have applied strict scrutiny with
entirely different demands of a “narrow tailoring” connection. For example,
in Nunez the court considered data122 and exceptions, which other courts
have accepted as sufficiently narrowly tailored, yet struck down the curfew
law as unconstitutional.123 By contrast, in Qutb, an ordinance with
essentially the same exceptions supported by highly generalized national
crime data124 satisfied strict scrutiny.125 More recently, in Weston W., the
court held that similar exceptions (and minimal data126) sufficiently satisfied
the demands of strict scrutiny.127
Other courts contend that the O’Brien test is the proper approach for
juvenile curfew analysis because such laws incidentally burden speech.128
Yet again, the methods of analysis by courts applying this test have yielded
profoundly different results. The Hodgkins court struck down the curfew
after applying the highly demanding O’Brien test, finding familiar curfew
121 See, e.g., Nunez v. City of San Diego, 114 F.3d 935, 945–46 (9th Cir. 1997)
(explaining the court’s rationale for choosing strict scrutiny).
122 See supra note 34 and accompanying text (describing the data presented to the court
on juvenile crime and victimization).
123 See supra notes 35–36 and accompanying text (discussing the Nunez court’s final
disposition).
124 See supra note 39 (discussing the data the government provided to support the curfew
ordinance).
125 See supra note 42. See also Chudy, supra note 102, at 560 (explaining that, although
the Qutb court selected strict scrutiny, “the court’s willingness to overlook the state’s inability
to substantiate the efficacy of the curfew undermines the usual rigor of strict scrutiny.
Furthermore, the court’s outright dismissal of statistics, which tended to cut against the
constitutionality of juvenile curfews, also undermined the court’s purported application of
strict scrutiny”); Herman, supra note 6, at 1862–63 (explaining how courts like Qutb, which
claim to apply strict scrutiny, apply in fact to a much more deferential form of review).
126 Commonwealth v. Weston W., 913 N.E.2d 832, 843 (Mass. 2009) (explaining that
even without data the juvenile curfew ordinance satisfied strict scrutiny). See id. (citing
Schleifer v. City of Charlottesville, 159 F.3d 843, 849 (1998)). Although data included only
an increase in juvenile crime locally and nationally between 1988 and 1994, the court
declared, “Lowell’s data are not comprehensive, the statistics do show a sufficient connection
between the goals of the ordinance and its substance. We do not demand of legislatures
‘scientifically certain criteria of legislation.’” Id. at 843 (citations omitted) (internal quotation
marks omitted). Note, however, that the Schleifer court applied intermediate scrutiny, not
strict scrutiny. Id. at 847. Therefore, the court purported to apply strict scrutiny but in reality
applied a deferential form of intermediate scrutiny, demanding almost no hard proof of the
curfew’s asserted justifications.
127 See supra notes 44–47 and accompanying text (explaining how the Weston W. court
upheld the juvenile curfew).
128 See supra Part II.B.3.
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exceptions insufficient to pass constitutional muster.129 However, the Idaho
Supreme Court in Doe applied the O’Brien test, upholding a curfew law
merely because of its exceptions.130
Yet still, some courts contend intermediate scrutiny is the proper test.131
In Schleifer, the court accepted extensive data sufficient to uphold the
juvenile curfew ordinance.132 However, the Ramos court held its ordinance
unconstitutional in the face of exceptions that other courts have held satisfy
strict scrutiny.133 The Hutchins court found the curfew’s exceptions, general
national crime data, and data on curfews from other jurisdictions satisfied
intermediate scrutiny.134 However, the Anonymous court held an ordinance
unconstitutional, even when the city presented a significant amount of local
data from a variety of sources.135
Indeed, “the level of scrutiny applied has proven largely irrelevant.” 136
Lower courts simply do not fully subscribe to the standards for strict and
intermediate scrutiny as articulated by the Court.137 Furthermore, a juvenile
curfew’s inclusion of a First Amendment exception does not necessarily
render the curfew constitutional.138 Although the Nunez court found the lack
129 See id. (discussing the Hodgkins court’s application of the O’Brien test wherein the
court demanded an extensive connective nexus between the curfew law and asserted
governmental interests, resulting in the court invalidating the curfew law).
130 See supra notes 88–91 and accompanying text (explaining the Doe court’s application
of the O’Brien test’s fourth prong, under which the Hodgkins court demanded extensive
proof).
131 See supra Part II.B.2.
132 See supra notes 52–56 and accompanying text.
133 Compare Ramos v. Town of Vernon, 353 F.3d 171, 172 (2d Cir. 2003) (The curfew’s
exceptions included parental accompaniment, emergency errands, employment, exercise of
First Amendment rights), with Commonwealth v. Weston W., 913 N.E.2d 832, 837 (Mass.
2009) (The curfew’s exceptions included parental accompaniment, parental and emergency
errands, employment, and exercise of First Amendment rights).
134 See supra notes 62–66 and accompanying text.
135 See supra notes 67–75 and accompanying text.
136 Major Confusion Over Minor Rights, supra note 4, at 2413.
137 Compare Part III.A.2 (discussing the lower courts’ frequently lenient and deferential
methods of scrutinizing juvenile curfew law challenges), with supra Part II.B.1 (discussing
the rigorous demands of strict scrutiny), United States v. Playboy Entm’t Grp., 529 U.S. 803,
813 (2000) (explaining “[under strict scrutiny,] [i]f a less restrictive alternative would serve
the Government’s purpose, the legislature must use that alternative”), supra Part II.B.2
(discussing the demands of intermediate scrutiny), and United States v. Virginia, 518 U.S.
515, 533 (1996) (explaining “[under intermediate scrutiny,] [t]he justification must be
genuine, not hypothesized . . . and [the justification] must not rely on overbroad
generalizations”).
138 See Jashinsky, supra note 104, at 571–73.
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of such an exception139 critical in holding the curfew at issue
unconstitutional,140 other courts fail to adhere to this approach. Furthermore,
as one scholar suggests, a First Amendment exception to curfew
enforcement will always result in unconstitutional vagueness.141
Therefore, a split in juvenile curfew jurisprudence exists nationally on
at least three issues. First, courts disagree about how Bellotti affects the
analysis of juvenile curfews and minors’ rights.142 Second, courts disagree
about the constitutional test for juvenile curfew challenges.143 Third, and
most fundamentally, courts applying even the same test disagree about the
constitutionally-satisfying connection between juvenile curfews and the
government’s asserted interests.144
B. Juvenile Curfew Laws Are Not Substantially Related to an Important
Governmental Interest
Studies conducted on juvenile curfews’ ability to advance the
government’s frequently asserted interests of preventing juvenile crime and
victimization “find little evidence to support the notion that curfews are
effective at reducing crime.”145 However, legislatures, courts, and
communities still seem eager to support juvenile curfews throughout the
139 See supra text accompanying notes 33–36 (listing the challenged curfew’s exceptions
and noting the absence of a First Amendment exception).
140
See supra text accompanying notes 33–36 (explaining how the Nunez court found the
curfew’s lack of exceptions dispositive of strict scrutiny’s “narrowly tailoring” requirement).
141 See Jashinsky, supra note 104, at 571–73 (explaining that First Amendment
exceptions always result in unconstitutional vagueness because (1) juvenile curfew First
Amendment exceptions do not afford a reasonable person notice of prohibited conduct
because “it is impossible to think that an ordinary person, particularly a minor would be
knowledge enough to unravel this exemption on their own,” (2) the First Amendment
exception substantially chills minors’ “willingness to” to exercise First Amendment
expression “because [such] exemption[s] provide no guidance as to what activities” are
permissible, and (3) because a First Amendment exception “cannot be designed in a way that
would eliminate arbitrary or discriminatory enforcement”). See supra note 23 for a
description of unconstitutional vagueness.
142 See, e.g., City of Panora v. Simmons 445 N.W.2d 363, 368 (Iowa 1989).
143 See, e.g., State v. J.P., 907 So.2d 1101, 1104–05 (giving examples of cases where
courts used the different constitutional tests).
144 Id. at 1105.
145 Patrick Kline, The Impact of Juvenile Curfew Laws on Arrests of Youth and Adults,
14 AM. L. & ECON. REV. 44, 45 (2012). See also Patrick Boyle, Curfews and Crime, YOUTH
TODAY (Nov. 1, 2006), http://youthtoday.org/2006/11/curfews-and-crime (explaining that
“research shows little or no evidence that curfews work” and—quoting Dan Macallair, who
has conducted several studies on the effectiveness of juvenile curfews—“[w]hat’s most
astounding, [about the empirical evidence proving the inefficacies of juvenile curfews], is
that it’s one of those areas where there doesn’t seem to be any relationship whatsoever to
policy analysis”).
(continued)
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nation.146 Why do many legal entities promote juvenile curfews despite a
lack of hard evidence147 demonstrating juvenile curfews’ effectiveness?
This section explains common justifications among proponents of juvenile
curfews and uses evidence, social commentary, and empirical data148 to
show why each justification is unfounded.
1. Youth Stereotypes Should Not Support Curfew Enactment
Legislatures often enact juvenile curfews because community members
and legislators intuitively believe that keeping children off the streets at
night will have positive effect149—after all, what good could a minor be up
to on the streets during late-night hours?150 This stereotype could not be
further from reality.151
The vast majority of children out during curfew hours engage in
innocent activity.152 For example, in Wanaque, Kansas, Shaina Harris—
146 See supra notes 2–3 and accompanying text.
See also Kenneth Adams, The
Effectiveness of Juvenile Curfews at Crime Prevention, 587 ANNALS AM. ACAD. 136, 136
(2003) (explaining that “[p]ublic opinion is solidly behind the use of curfews”).
147 See infra Part III.B.4 (explaining how empirical evidence indicates juvenile curfews
do not reduce juvenile victimization or juvenile crime).
148 See Adams, supra note 146, at 141 (arguing that “[w]hat is often missing from [the
debate over the effectiveness of juvenile curfews] is solid empirical evidence, facts that meet
social scientific standards of inquiry”).
149
See Mike Males & Dan Macallair, An Analysis of Curfew Enforcement and Juvenile
Crime in California, 1 W. CRIMINOLOGY REV. (1999), http://westerncriminology.org/
documents/WCR/v01n2/Males/Males.html (emphasizing that “of [347 cities], eighty-eight
per cent claimed that their curfews reduced youth crime, even though the survey did not
include a statistical analysis of the effect curfews have had on crime”).
150 See Doug Denison, Dover Weighs Curfew for Youths to Deter Crime, NEWS J. (Feb.
28, 2012) (quoting Dover Police Lieutenant Scott Jones) (“If we’re getting kids off the street
between the hours of midnight and 6 a.m., you’re telling me that’s not making some sort of
impact on crime?”). See also Richard Yeakley, Some Area Cities Enforce Juvenile Curfews
to Curb Crime, LONGVIEW NEWS-J. (Sept. 23, 2012) (quoting Gilmer School Board Member
Kendra Pierce: “I think it’s a good thing because there is no reason for young teens to be out
that late.”).
151 See, e.g., Gary Gately, Baltimore’s Newly Approved Youth Curfew Among Strictest in
Nation, JUV. JUST. INFO. EXCHANGE (June 16, 2014), http://jjie.org/baltimores-newlyapproved-youth-curfew-among-strictest-in-nation (quoting Sonia Kumar, staff attorney for
the ACLU of Maryland: “One of things that seems deeply problematic to us is just the
assumption that simply because a young person is out at what is now a very early curfew
hour . . . that necessarily means that the kid is doing something wrong or the family is
neglectful and needs counseling.”). See also Mike Males, OP-ED: Why Don’t Youth Curfews
Work?, JUV. JUST. INFO. EXCHANGE (Oct. 14, 2013), http://jjie.org/op-ed-why-dont-youthcurfews-work/105444 (opining that “[u]nderstanding why curfews fail requires radically
revising our entire view of young people perpetrated by [influential members of society]”).
152
See Editorial, Out All Night, BALTIMORE SUN (Sept. 12, 2013),
http://articles.baltimoresun.com/2013-09-12/news/bs-ed-curfew-20130912_1_earlier(continued)
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who earned her GED at age sixteen—was charged under a curfew ordinance
for walking across the street to get a milkshake with her mother’s
permission.153 She faced a $100 fine and up to fifteen hours of community
service.154 Additionally, in the Seventh Circuit case Hodgkins, police
arrested Colin Hodgkins when he and friends left a restaurant after attending
a school soccer game.155 Colin was handcuffed and detained for two and a
half hours156 for engaging in completely innocent, normal157 teenage
activities. Shaina’s and Colin’s stories are typical of curfew violators.158
Punishing all minors with a nocturnal curfew159 is illogical if only a very
small number of minors160 actually commit crimes. Juvenile curfews make
each minor out past curfew hours subject to criminal or civil penalties, no
curfew-curfew-center-juvenile-crime [hereinafter Out All Night] (“In most cases, kids who
are on the streets after curfew aren’t there because they’re up to no good. . . . ”). See also
Adams, supra note 146, at 150 (finding that “410 curfew stops in Vernon, Connecticut,
produced 10 arrests. Seven of the arrests were for curfew violations, and only 3 were for
other crimes. . . . [I]n Dallas . . . 98 curfew detentions yielded 8 arrests. . . . [A]vailable
research indicates that curfew laws are not an efficient mechanism for uncovering criminal
behavior.”).
153 Dan Ivers, ACLU Files Lawsuit Challenging Wanaque’s Youth Curfew, NJ.COM (Mar.
8, 2013), http://www.nj.com/bergen/index.ssf/2013/03/aclu_files_lawsuit_to_challenge_
wanaque_youth_curfew_law.html.
154 Id.
155 Hodgkins v. Peterson, 355 F.3d 1048, 1051 (7th Cir. 2004).
156 Id. at 1052.
157 See Groups Join in Opposition to Proposed Providence Curfew Ordinance, ACLU
R.I. (Aug. 14, 2012), http://www.riaclu.org/news/archive-post/groups-join-in-opposition-toproposed-providence-curfew-ordinance [hereinafter Opposition] (“[Juvenile curfew
ordinances] make perfectly innocent activity—walking, talking, or traveling outside—
illegal.”).
158 See, e.g., Mike Males, Banning Youths from Streets May Make Us Less Safe,
BLOOMBERG BUS. (Aug. 31, 2011), http://www.bloomberg.com/news/articles/2011-0901/banning-kids-from-streets-may-make-us-less-safe-commentary-by-mike-males
(discussing how “more than 99 percent of the youths cited or arrested weren’t in danger or
suspected of any criminal activity or intent”).
159 See id. (explaining that “[j]uvenile curfews are unique to the U.S. No other country,
including those in Latin America and Asia or even the U.K. during recent riots in London,
invokes such measures except during national emergencies—and then they apply to all
ages.”).
160 See Opposition, supra note 157 (“[T]eenagers engaged in gang activity or other
criminal activities will either ignore the curfew or change their time of doing business; it is
the thousands of law-abiding teenagers who truly end up getting punished.”). See also
Denison, supra note 150 (quoting Jeffrey Nadel, Vice President of the National Youth Rights
Association: “The logic behind curfews is unsound. If someone is intent on committing a
violent crime, that person is not going to be deterred by a curfew ordinance.”).
(continued)
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matter the activity in which he or she engages.161 Moreover, juvenile curfew
laws create a self-fulfilling prophecy by cycling even more children into the
justice system.162 Additionally, curfew tension between minors and police
creates a hostile environment and a negative perception of law enforcement
among minors.163 However, despite police enforcement of juvenile curfews
subjecting many innocent minors to civil and criminal penalties, the
stereotypes of youth continue.164 Minors engage in many innocent activities
after dark, such as eating and socializing with friends, and getting exercise
outdoors with other minors.165 It is time to stop marginalizing the youth of
America as having nothing good to do after dark.166 After all, “[w]e would
161
See Robyn E. Blumner, Curfews for Juveniles: More and More Cities Are Adopting
Them, But Are They Constitutional?, 80 A.B.A. J. 40, 41 (Apr. 1994) (arguing that “youth
curfew subjects a targeted population to summary punishment based upon an immutable
characteristic (age), with no showing of individual criminal culpability”). See also
Opposition, supra note 157 (proposing that “the [proposed curfew] makes every teenager out
at night a criminal suspect”).
162 See J.B. Smith, Waco Council Ends Juvenile Curfew After 17 years, WACO TRIB.HERALD (Sept. 17, 2014), http://www.wacotrib.com/news/city_of_waco/waco-council-endsjuvenile-curfew-after-years/article_d4cba545-084f-5808-9ac1-559dfebe9584.html
(reporting that “[City Council members] worry that the curfew is sweeping children who may
have no criminal history into the justice system”). See also Vincent Schiraldi, Curfew’s Time
Has Passed: System Is Not a Factor in Controlling Youth Crime, Statistics Show, LEGAL
TIMES (Sept. 28, 1999) (iterating that “more children are arrested for curfew violations each
year than for any other offense”).
163 See Thomas J. Lucente Jr., Curfew Laws Treat All Teenagers Like They’re Criminals,
LIMA NEWS: LIGHT OF LIBERTY (Nov. 1, 2009) (“[A]n unintended consequence of juvenile
curfew laws is that arresting teenagers for acts that would not be crimes if committed by
adults leads to antagonism between noncriminal teens and law enforcement.”); Yeakley,
supra note 150 (quoting Jeffrey Nadel) (“[C]urfews actually make cities less safe because
students and parents have an antagonistic relationship with the police.”); Kenneth Adams,
Abolish Juvenile Curfews, 6 CRIMINOLOGY & PUB. POL’Y 663, 667 (2007) (“[A] tendency
exists to impose more serious sanctions on chronic curfew violators, which can lead directly
to incarceration and can build a criminal record in ways that may lead to enhanced penalties
in adulthood as a repeat offender.”).
164 See Mike Males, OP-ED: Why Don’t Youth Curfews Work?, JUV. JUST. INFO.
EXCHANGE (Oct. 14, 2013), http://jjie.org/op-ed-why-dont-youth-curfews-work/105444
(“Youth Today’s survey of officials in communities then campaigning for curfews found they
cared nothing for research or reason; sweeping kids off the streets made them feel satisfied
and safer.”). See also Males, supra note 158 (“[C]urfew advocates seem both unaware of—
and indifferent to—research. . . . [S]upport [is] largely based on impressions, anecdotes and
gut feelings (uniformly negative ones) toward youth.”).
165 See id. (“[M]ore than 99 percent of the youths cited or arrested weren’t in danger or
suspected of any criminal activity or intent. They were playing basketball in the park, heading
home from movies or work, emerging from restaurants, talking with friends.”).
166 See id.
(continued)
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never accept the idea of reducing adult crime by instituting an adult
curfew.”167
2. Curfews Are a Selective and Arbitrary Enforcement Tool for Law
Enforcement
Proponents of juvenile curfews assert that curfew enforcement gives
police officers another tool168 to detect other forms of crime by giving
officers probable cause to stop any minor after dark. 169 However, data
conclusively shows curfew enforcement rarely leads to detecting additional
criminal activity.170 Moreover, many community members have expressed
concerns that the police’s ability to selectively enforce juvenile curfew laws
[U]ntil public officials and news media stop indulging in tones of panic
and anger toward young people, and adopt the same objective standards
of analysis we demand for adult behavior and trends, we will continue to
see intrusive, ineffective cure-alls such as youth curfews. As strange as
it sounds in today’s climate, what cities need is more, not fewer, kids on
the street.
Id.
167
Lucente Jr., supra note 163.
See Adams, supra note 146, at 150 (reasoning that “law enforcement officials tend to
support curfew laws because they are viewed as an investigatory tool that potentially allows
police officers to identify more criminal activity”).
169 See id. (discussing effectiveness and efficiency of curfews); Denison, supra note 150
(quoting Dover Police Lieutenant Edward Huey: “I think it’s a useful tool to [the police]. The
enforcement of it is not something that’s done very stringently. It certainly gives us probable
cause to stop someone.”); id. (quoting Dover Police Chief James Hosfelt: “It could be tough
to enforce, but we will see how it goes. I like the idea of having it, simply because it gives
us another tool.”).
170 See supra text accompanying note 152. See also Mike Males, Vernon, Connecticut’s
Juvenile Curfew: The Circumstances of Youths Cited and Effects on Crime, 11 CRIM. JUST.
POL’Y REV. 254, 262–64 (Sept. 2000) (“Of [384 curfew citations], 70% of the youths were
‘hanging out’ (standing, talking, walking, playing basketball, etc.) with friends, and 28%
were driving (including a few who were sitting) in cars. Two thirds were with friends or
family members; the remainder were alone. . . . Only seven [of the 384] youths cited [1.7%]
were reported engaging in suspicious, criminal, or runaway activity or were served with a
warrant.”).
(continued)
168
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leads to discriminatory enforcement.171 Further, data analysis from across
the nation shows these concerns are not unfounded.172
In Waco, Texas, data collected on the city’s juvenile curfew revealed
evidence of racially discriminatory enforcement.173 In California, a study of
curfew enforcement in several large counties evidenced significant racial
discrepancies.174 San Jose abolished its curfew after police arrested a black
youth for a curfew infringement, yet did not approach a group of white
youths.175 Moreover, every curfew studied by the Center on Juvenile and
Criminal Justice “overwhelmingly target[ed] African and Latino American
youths.”176
Studies conducted on the New Orleans curfew are particularly
disturbing. Police arrested a (presumably non-white) twelve-year-old boy
who was on his way home from a McDonald’s restaurant with his two
teenage sisters.177 Because the boy’s foster mother could not pick him up,
he was chained to eight older, African American boys who had also violated
curfew.178 The boy spent the night on the floor of a cell.179 The research
171
See, e.g., Out All Night, supra note 152 (pointing out that civil liberties advocates
“worry about the potential for selective enforcement based on race or class”); Opposition,
supra note 157 (“By [making innocent activity illegal, the curfews] give police virtually
unbridled discretion to stop, detain, harass, and search teenagers. This can only encourage
arbitrary and discriminatory enforcement.”); Denison, supra note 150 (quoting Jeffrey Nadel)
(“Curfews exacerbate problems in areas, particularly minority neighborhoods, where the
community’s relationship with police is not positive.”); Youth Curfews Waste Police Time,
ST. PETERSBURG TIMES (Apr. 5, 2011) [hereinafter Police Time] (asserting that “there are
always dangers that curfews will be enforced more vigorously in poorer neighborhoods,
leading to charges of discrimination”); Gately, supra note 151 (“[S]ome African-American
residents see the curfew as a potential tool of repression that will lead to police harassing
black youths in low-income neighborhoods.”); id. (quoting Baltimore’s People Power
Assembly Member Sharon Black: “We don’t believe that the police are going to go in wealthy
neighborhoods [to enforce the curfew] . . . . It’s going to be primarily West Baltimore, East
Baltimore. The poor communities will end up being targeted, which are mainly AfricanAmerican.”); Smith, supra note 162 (“[City council members] expressed concerns about the
apparent racial disparities [in the curfew’s enforcement].”).
172 See Males, supra note 164.
173 See id. (noting that “three-fourths of the juveniles cited so far [in 2014] were black”).
174 See Mike Males & Dan Macallair, The Impact of Juvenile Curfew Laws in California,
CTR. ON JUV. & CRIM. JUST. 7 (1998) http://files.eric.ed.gov/fulltext/ED427147.pdf (“[I]n
Ventura County, curfew arrests of Hispanic and black youths are 8.4 times and 7.4 times
higher, respectively, than those of white youths. In Fresno and Santa Clara counties, Hispanic
youths are 5 times, and black youths 3 times, more likely . . . [and] Los Angeles authorities
arrest Hispanic and black youths for curfew violations at rates 2 to 3 times that of whites.”).
175 Schiraldi, supra note 162.
176 Males, supra note 164.
177 Schiraldi, supra note 162.
178 Id.
179 Id.
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bears a similar, less anecdotal trend for the city at-large: police arrested black
youths for curfew violations in New Orleans nineteen times more than they
did whites during the first year of the juvenile curfew’s enforcement.180
Recall that this potential for selective and arbitrary enforcement may
constitute unconstitutional vagueness.181 Juvenile curfews’ prohibitions
encompass entirely too much activity. Police officers frequently have
unrestricted discretion in electing whom to stop, search, and detain when
enforcing a juvenile curfew.182
3. Curfews Are Not an Efficient Use of Police Resources
In addition to juvenile curfews’ utility to police officers, proponents of
juvenile curfews often cite183 the efficiency of juvenile curfews as a low cost
means of accomplishing governmental goals.184 However, as explained
above, even if curfews’ costs are nominal,185 these curfews’ terms often
leave police entirely too much discretion.186 More importantly, research
proves juvenile curfews are often an inefficient use of police time and
resources.187
Juvenile curfews are burdensome on police officers’ time, which might
otherwise be spent enforcing laws against actual criminals.188 Studies of
180
Id.
See supra note 23–24 and accompanying text.
182
See Schiraldi, supra note 162 (asserting that disparate enforcement “should be of
particular concern for a city whose juvenile detention facility has a population made up
entirely of African-American teen-agers on most evenings”).
183 See Adams, supra note 163, at 665 (offering the common pro-curfew notion that
“[c]urfews seem to be a relatively inexpensive crime-control strategy because existing
personnel are used for enforcement”).
184 See Police Time, supra note 171 (explaining that “[j]uvenile curfews are politically
popular because they appear to be inexpensive quick fixes”).
185 See Adams, supra note 146, at 153 (explaining that although there is “scant” data on
the cost of juvenile curfew enforcement, “[c]learly, substantial sums of money are being
expended on curfew enforcement”).
186 See supra Part III.B.2.
187 See Blumner, supra note 161 (arguing that we are “condemning a group for the
misdeeds of a few—and dispensing with the pesky and time-consuming requirements of
individual suspicion, accusation and proof”); Opposition, supra note 157 (arguing that
“[p]olice time is spent looking for, and demanding identification from, young people after
some arbitrary nighttime hour arrives is time spent not actually monitoring and patrolling the
community for actual criminal conduct”).
188 See Out All Night, supra note 152 (“[T]he head of the city’s police union says he
worries about officers spending time enforcing curfew laws that might better be spent
focusing on more serious offenses.”); Adams, supra note 146, at 150 (“[R]esearch indicates
that curfew laws are not an efficient mechanism for uncovering criminal behavior.
Furthermore, most of the criminal activity that is uncovered by curfew enforcement consists
of minor offenses or curfew-related infractions.”).
(continued)
181
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juvenile curfews show that curfews take police—who must approach, cite,
and take enforcement steps against the cited youths—off the streets during
hours when real criminals commit real crimes.189 Moreover, curfew
enforcement rarely leads to the discovery of criminal activity or criminal
contraband,190 as most juveniles out past curfew hours engage in innocent
activity.191 As much of the commentary on the issue reveals, juvenile
curfews ignore the complex issues behind juvenile crime.192
4. Curfews Are Not Substantially Related to Reducing Juvenile Crime
and Preventing Juvenile Victimization
The compelling governmental interests of reducing juvenile crime and
preventing juvenile victimization are the most important justifications given
for juvenile curfew laws.193 Protecting children is no doubt an important and
compelling interest. However, studies during the last fifteen years raise
questions about whether juvenile curfews really do much to protect
See Males, supra note 164 (explaining that “[our] analysis of 400 police citations
found just that: Curfews function as remarkably effective tools to waste law enforcement
resources removing law-abiding youths from public places, where youthful presence serves
to deter crime”); Males, supra note 170, at 266.
189
[C]urfews may inadvertently increase the opportunity for crime.
Theoretically, a curfew should reduce juveniles’ access to illegitimate
means by removing them from public places where such means are
available to homes where such means are less available. However, the
curfew’s chief effect was to occupy police time removing youths whom
police reports indicate were otherwise law-abiding from public places.
These two effects may increase opportunities for crime by those inclined
to take advantage of public places emptied both of average citizens
(youths in this case) and of police presence.
Id. See also Adams, supra note 163, at 665 (“Curfew violations [(100,200 in 1993)] roughly
equate to all arrests [(119,678 in 1993)] for the most serious juvenile crimes, and FBI statistics
may underestimate the volume of curfew enforcement activity.”).
190 See supra notes 152–61, 170 and accompanying text. See also Males, supra note 158
and accompanying text.
191 See Males, supra note 158 and accompanying text.
192 See Tim Pratt, Police: Juvenile Curfew Wouldn’t Curtail Juvenile Crime, COM.
DISPATCH (June 17, 2010) (quoting Starkville Police Department Captain Frank Nicols:
“Having a curfew isn’t really going to solve anything. . . . Problems with today’s youth can
be solved with parental guidance, education, job skills and productive
activities. . . . [S]chools, police, department of human services, churches, community leaders,
and elected officials should work together to guide local youth.”). See also Police Time,
supra note 171 (“[Juvenile curfews] create a host of problems without addressing the complex
social issues that cause juvenile crime.”).
193 See supra Part II.B.1 (wherein every government entity asserted reducing juvenile
crime and victimization to satisfy the first prong of whichever tier of scrutiny the court
applied).
(continued)
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minors.194 Moreover, juvenile curfews actually increase the opportunity for
juvenile crime and victimization because fewer people are on the streets to
witness crime.195
a. The Majority of Juvenile Crime and Victimization Occurs
Outside Curfew Hours
The U.S. Department of Justice reports that juveniles most frequently
commit violent crimes on school days during the hours immediately
following school.196 On non-school days, violent juvenile crime is most
frequently committed between 7:00 p.m. and 9:00 p.m.197 Each of these time
periods runs outside of the general juvenile curfews’ nocturnal hours.198
Between 1980 and 2012, murder arrest rates declined for all age groups.199
The same is true for robbery arrest rates, with the decrease for juveniles
greater than for adults.200 Arrest rates for property crimes followed this
trend—for persons between the ages of fifteen and seventeen, property crime
arrests decreased 57% between 1980 and 2012.201 Furthermore, juvenile
victimization most frequently occurs between 3:00 p.m. and 4:00 p.m.202
These statistics indicate that in the past twenty-five years, juvenile crime
rates have fallen nationwide without the assistance of juvenile curfew
194
See infra Parts III.B.4.a–III.B.4.b.
See Lucente Jr., supra note 163 (“[S]ome studies indicate the laws might actually
increase the possibility of victimization by bringing together in time and space motivated
offenders with more suitable and less guarded targets.”).
196 Office of Juvenile Justice and Delinquency Prevention, Statistical Briefing Book: Time
of Day, U.S. DEP’T JUST. (May 22, 2014), http://www.ojjdp.gov/ojstatbb/offenders/
qa03301.asp?qaDate=2010 (the crimes included murder, violent sexual assault, robbery,
aggravated assault, and simple assault).
197 Id.
198 See supra note 106 and accompanying text.
199 Office of Juvenile Justice and Delinquency Prevention, Statistical Briefing Book: Agespecific Arrest Rate Trends, U.S. DEP’T JUST., (Dec. 16, 2014), http://www.ojjdp.gov/
ojstatbb/crime/qa05302.asp?qaDate=2012.
200 Id.
201 Id.
202 Office of Juvenile Justice and Delinquency Prevention, Statistical Briefing Book:
Violent Crime Victimization, U.S. DEP’T JUST. (Dec. 21, 2010), http://www.ojjdp.gov/
ojstatbb/victims/qa02602.asp?qaDate=2008 (“[V]iolent crimes with juvenile victims peaked
between 3 p.m. and 4 p.m., fell to a lower level in the early evening, and declined substantially
after 9 p.m.”). “Robbery victimizations for persons under age 18 reach their highest levels
between 7 p.m. and 9 p.m.” Id. “Aggravated assault victimizations of juveniles peak between
3 p.m. and 4 p.m.” Id.
(continued)
195
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laws,203 and juvenile crime and victimization occur outside the most
common curfew hours.204
Additionally, another study in 2003 by the Department of Justice found
“little support for the hypothesis that . . . curfew[s] reduce[] arrests . . . [or]
reduce[] violent victimization of youth.”205 Other studies uniformly suggest
that juvenile curfews do little to advance their posited interests.206
b. Studies Indicate Curfews Do Not Reduce Juvenile Crime or
Victimization
Between 1998 and 1999, Males and Macallair examined the effect of
juvenile curfews in California.207 In Los Angeles County, the police
department reported that “vigorous curfew enforcement” had no discernible
effect on juvenile crime or victimization.208 In San Francisco, three curfew
arrests between 1993 and 1997 yielded a 50% decline in juvenile murders.209
Property crime declined 36%, while all violent crimes decreased by 41%.210
The study also found higher levels of curfew enforcement in Fresno, San
Diego, and Santa Clara yielded higher amounts of youth crime across the
board.211 The study concluded, “Statistical analysis provide[d] no support
for the proposition that stricter curfew enforcement reduces youth
crime . . . either absolutely or relatively to adults, by location, by city, or by
type of crime.”212 Revisiting California’s curfews in 2013, Males reported
that, although curfew enforcement dropped 80% in the previous fifteen
years, California’s youth crime rates also dropped to the lowest level for
nearly every type of crime.213
203 See supra notes 196–97 and accompanying text. See also Schiraldi, supra note 162
(explaining that “crime by D.C. juveniles was already falling without a curfew, and cities that
enforce curfews do no better at controlling crime than cities that do not have curfews”).
204 See supra notes 196–97 and accompanying text.
205 See Boyle, supra note 145 (The Urban Institute performed the study, which covered
two curfews in Maryland.).
206 See infra Part IV.B.4.b.
207 See Males & Macallair, supra note 174, at 3. See also Males & Macallair, supra note
149.
208 See Males & Macallair, supra note 174, at 4 (“[T]he [LAPD] reported that vigorous
curfew enforcement, including 101 task forces of 3,600 officers who wrote 4,800 curfew
citations to youths in six months, had no effect on reported crime or juvenile violent crime.”).
209 See Males & Macallair, supra note 149.
210 See id.
211 See id.
212 See id.
213 Males, supra note 164.
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Males also conducted a study of Vernon, Connecticut’s curfew in
2000.214 The study found Vernon’s curfew did not help reduce the city’s
reduction in crime.215 The city experienced a decrease in crime much like
that experienced across the nation.216 During this time, both juvenile and
adult crime fell across the nation.217 Further, Vernon, Connecticut, showed
a larger decrease in crime before juvenile curfew enactment than after
enactment.218
214
215
Males, supra note 170, at 254.
See id. at 259.
Nine of the 10 comparison cities in Connecticut also experienced
declines in offenses. Comparing 1995 to 1998 with 1992 to 1993, crime
declined by an average of 13.8% (and a median of 16.4%) in the 10
Connecticut cities of similar size, by 14.8% in Connecticut as a whole,
and by 13.1% in the 600 cities nationwide of comparable size. These
declines exceed Vernon’s 10.6%.
Id.
216
See id.
See supra notes 196–98 and accompanying text.
218 See Males, supra note 170, at 260. See also id. at 261.
217
Vernon’s crime decline did not correspond to the curfew’s enforcement.
In the first 5 months after the curfew adoption, when it was strongly
enforced (an average of 23 citations per month from September 1994
through January 1995) and we would expect greatest
incapacitation/deterrence effect, crimes rose substantially (up 20%)
compared to the corresponding months of the previous year. Vernon’s
crime decline did not begin until February 1995, 6 months after the
curfew took effect, and it coincided with diminished curfew enforcement
(14 citations per month from February through August 1995,
accompanied by a 25% decline in offenses compared to February to
August 1994).
Id.
(continued)
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In 2003, Kenneth Adams surveyed ten219 studies on juvenile curfews.
These studies used a wide range of methods and data.220 He concluded,
based on “the weight of scientific evidence,” juvenile curfews’ actual
effectiveness “fails to support the argument that curfews reduce crime and
criminal victimization.”221
McDowell, Loftin, and Wiersema conducted a study in 2000222
examining curfews’ impact in fifty-seven large American cities, and studied
data from ten different crime categories.223 The study concluded that
juvenile curfews have no recognizable impact on reducing juvenile crime or
victimization.224 At times, an increase in homicide and simple assault
occurred following the curfew laws’ enactments.225
219
See Adams, supra note 146, at 141.
Studies with the following characteristics are included in the review: (1)
the study investigates the effects of a curfew statute that restricts the
presence of juveniles on the street during certain hours (daytime or
nighttime); (2) the study includes measures of public safety, criminal
offense behavior, or victimization as outcome variables; and (3) the study
makes or allows for statistical comparisons of outcome variables before
and after curfew implementation.
Id.
See id. at 155 (“[The Studies] include both small-and large-scale investigations, micro
and macro units of analysis, short and long time periods, crime and noncrime outcome
variables, and basic and sophisticated methods of analysis.”).
221 See id. at 138, 144.
220
If one tallies all the relations between curfew laws and crime examined
in these studies, researchers report no significant change in crime rates in
roughly three out of four instances. When significant changes in crime
rates are observed, about half the studies show increases while the other
half show decreases.
Id.
222
See id. at 145.
See id. at 145–46.
224 See id. at 148 (explaining the findings regarding impact on criminal victimization,
where “analyses indicate that neither implementation nor revision of a curfew law had a
statistically significant impact on juvenile homicide victimization”); id. at 146 (“The analyses
revealed that implementation of new curfew laws did not have a statistically significant
impact on any of the crime categories examined.”).
225 See id. at 146.
223
Passage of a new curfew law showed a statistically significant increase
in homicide, and curfew law revision showed a statistically significant
decrease in larceny. Analyses of the impact of curfew enforcement
arrests on arrests for other crimes showed no statistically significant
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Sutphen and Ford’s 2001 study of the juvenile curfew of an unnamed
city reached similar conclusions.226 The study examined juvenile arrest
statistics for three years before and after the enactment of a juvenile
curfew.227 The study did not find a meaningful effect on juvenile crime or
victimization.228
Adams’s own 2002 study examined the juvenile curfews in Dallas, Fort
Worth, Houston, and San Antonio, Texas.229 The study found little
recognizable impact between curfew enactment and crime rates.230
Examination of twenty relations between crime during non-curfew time and
curfew implementation yielded similar results.231
The Reynolds, Seydlitz, and Jenkins study, conducted in 2000,
examined New Orleans’s juvenile curfew law.232 The study looked at police
arrest and victim reports—both before and after the curfew’s enactment—
over a one-year period.233 The study concluded the curfew had no significant
effect on crime during curfew and non-curfew hours.234 Both violent crimes
and property crimes committed against juvenile victims increased.235
Studies that report to find a decrease in juvenile crime resulting from
curfews often leave much to be desired in research methods. For example,
Patrick Kline’s 2011 study concluded curfew enactment is associated with a
relations for the fifty-two county analyses and a statistically significant
increase in simple assault for the twelve city/county analyses.
Id.
226
See id.
See id.
228 See id.
227
[T]he curfew did not have an effect on arrest rates, while a comparison
of mean arrest rates before and after curfew implementation showed that
the overall arrest rate had dropped a bit. When specific crime categories
were examined, it was found that arrest rates for violent crimes and
felonies increased slightly, while rates for property crimes decreased
slightly. None of the observed differences were statistically significant.
Id.
229
See id.
See id. (“[O]ut of thirty-eight relations between curfew implementation and crime
rates, four showed a significant decrease in crime, two showed a significant increase in crime,
and thirty-two showed no significant change.”).
231 See id. (“[A]mong the twenty relations between crime during noncurfew hours and
curfew implementation, one showed a significant decrease, three showed a significant
increase, and six showed no significant change.”).
232 Id.
233 Id. at 146–47.
234 See id. at 146.
235 See id. at 148.
(continued)
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10% decrease five years after such enactment.236 However, Kline’s study
did not cover non-curfew cities.237 Reliable data found nationwide by the
Department of Justice shows steady reductions in all crime over the past
twenty-five years.238
For all the aforementioned reasons, the government’s justifications for
juvenile curfew laws rely on “overbroad generalizations.”239 Even the
lowest tier of scrutiny, rational basis, demands courts ascertain “the relation
between” the law and the government’s objective.240 Because “the purpose
and practical effect” of juvenile curfew laws indicate “discriminations of an
unusual character,” these laws “require careful consideration.”241 Juvenile
curfew laws’ “sheer breadth is so discontinuous with the reasons offered”
that the curfews “seem[] inexplicable by anything but animus toward[]”
minors.242 Therefore, any court knowing the true ineffectiveness of juvenile
curfew laws, and applying either strict or intermediate scrutiny in the manner
the Supreme Court of the United States intends, could only “find it
impossible to credit them.”243
IV. CONCLUSION
Lower courts have deviated far from the Court’s constitutional
jurisprudence when analyzing juvenile curfew laws. These courts’
inconsistent results and conflicting analyses indicate a deep-seated
nationwide split. Furthermore, juvenile curfews substantially chill protected
First Amendment expression.244 Legislatures’ and local community
members’ continued support of juvenile curfew laws only acts to enforce
negative stereotypes of minors.245 Juvenile curfews easily allow selective,
even racially discriminatory, enforcement.246 Curfews lead police officers
to spend significant time persecuting and processing unimportant curfew
236
See Kline, supra note 145, at 60.
See Males, supra note 158 (asserting that “[Kline’s] study only included cities that
implemented curfews and failed to account for national trends showing much larger crime
declines among younger teens than among those older teens subject to curfews, including in
cities without curfews”).
238 See supra notes 196–97 and accompanying text.
239 United States v. Virginia, 518 U.S. 515, 533 (1996) (stating that for the government
to enact laws based on classifications, those classifications may not be based on ‘overbroad
generalizations’ about differences between members of each classification).
240 Romer v. Evans, 517 U.S. 620, 632 (1996).
241 United States v. Windsor, 133 S. Ct. 2675, 2693 (2013).
242 Romer, 517 U.S. at 632.
243 Id. at 635.
244 See supra note 141 and accompanying text.
245 See supra Part III.B.1.
246 See supra Part III.B.2.
(continued)
237
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offenses during nighttime hours, while real criminals roam the streets. 247
Most importantly, almost all empirical studies on the effectiveness of
juvenile curfew laws show the regulations have absolutely no, or at a best
marginal, effect on the “compelling” interests of reducing juvenile crime and
victimization.248
Therefore, the Supreme Court of the United States must review a
juvenile curfew case for two reasons. First, courts nationwide have
incredibly divergent approaches to juvenile curfew analysis, all of which are
inconsistent with the Court’s articulated standards, and the Court must
resolve this disparity.249 Second, studies cast significant doubt upon juvenile
curfew laws and their ability to further the asserted governmental interests
upon which they are premised.250 Therefore, the Court should reassert its
authority and establish concrete precedent for analyzing curfew laws, which
will undoubtedly help lower courts to obtain uniformity in this confusing,
and often misperceived, area of constitutional law.
247
See supra Part III.B.3.
See supra Part III.B.4.
249 See supra Part II.A. See also supra Part III.A.
250 See supra Part III.B.
248