McQUILLIN MUNICIPAL LAW REPORT

DALLAS JUVENILE CURFEW ORDINANCE CONSTITUTIONAL

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Curfew ordinances that have a broad general application have typically been held to be unconstitutional. However, where a nocturnal juvenile curfew ordinance provided for defenses to a violation of the ordinance, it was considered narrowly drawn enough to withstand a strict scrutiny review. Qutb v. Strauss, 8 F3d 260 (CA5 1993).

The Dallas City Council enacted a juvenile curfew ordinance in response to citizens' demands for protection of the city's youth. The ordinance prohibited persons under 17 years of age from remaining 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. The ordinance did not apply to persons under 17 years of age who were married or had previously been married. A "public place," as defined by the ordinance, was any place to which the public or a substantial group of the public has access, and included streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. The term establishment was defined as "any privately-owned place of business operated for a profit to which the public is invited, including but not limited to any place of amusement or entertainment."

The ordinance contained a number of exceptions or defenses. For instance, if a person under the age of 17 was in a public place during curfew hours and was accompanied by a parent or guardian or was on an errand for a parent or guardian, then that person was not in violation of the ordinance. Minors were also allowed to be in public places after curfew if they were in a motor vehicle travelling to or from a place of employment, or if they were involved in employment related activities. In addition, affected minors could attend school, rligious, or civic organizational functions and generally exercise their First Ammendment speech and associational rights without violaiting the ordinance. Minors were also allowed to engage in interstate travel or remain on a sidewalk in front of the minor's home, or the home of a neighbor without violating the ordinance. Further, the ordinance did not restrict a minor's ability to move about during curfew hours in the case of an emergency.

A minor that remained in any public place or on the premises of any establishment during curfew hours would be in violation of the curfew if the minor's activities were not exempted from coverage. If a minor appeared to be in violation of the ordinance, the ordinance required that police officers ask the age of the apparent offender and inquire into the reasons for being in a public place during curfew hours before taking any enforcement action. Officers could issue citations or arrest apparent offenders only if the officers reasonably believed that the person had violated the ordinance and that no defenses applied. A convicted minor was subject to a fine not to exceed $500 for each separate offense. A parent of a minor or an owner, operator or employee of a business establishment was also subject to the same fine for a violation of the ordinance. A parent or guardian of a minor violated the curfew ordinance if the parent or guardian knowingly permited, or by insufficient control allowed, a minor to remain in any public place or on the premises of any establishment during curfew hours. An owner, operator or employee of a business establishment commited an offense of the ordinance by knowingly allowing a minor to remain upon the premises of the establishment during curfew hours.

Two weeks after the ordinance was passed, Elizabeth Qutb and three other parents of teenagers filed an action in district court seeking a temporary restraining order and a permanent injunction against the enforcement of the juvenile curfew ordinance based on the assertion that the ordinance was unconstitutional. The assertion of unconstitutionality was based on the argument that the ordinance impermissibly restricted First Amendment rights of free speech and free association; violated the Fourth and Fourteenth Amendment rights against unreasonable searches and seizures; divested claimants of their Fifth and Fourteenth Amendment rights to a presumption of innocence, proof beyond a reasonable doubt, and freedom against self-incrimination; and violated the equal protection clause and implicated fundamental liberty and privacy interests protected by the due process clause of the Fourteenth Amendment.

Prior to the district courts final order in the action, the city voluntarily amended the curfew ordinance. The amended ordinance deleted or altered some of the provisions that were included in the plaintiff's complaint. Also, the revised ordinance expanded some of the defenses available to affected minors. The plaintiffs subsequently filed an amended complaint and an amended motion for a permanent injunction against enforcement of the curfew. After an evidentiary hearing, the district court held that "the curfew impermissibly restricted minors' First Amendment right to associate, and that it created classifications that could not withstand constitutional scrutiny." Enforcement of the curfew was permanently enjoined and the city appealed the ruling.

Because the ordinance distinguished between two or more relevant groups, the Circuit Court began its analysis of the ordinance under the Equal Protection Clause. 'I'he court then determined that the curfew impinged upon a fundamental right and consequently applied a strict scrutiny review. In order to survive such a review, the classification created by the ordinance must promote a compelling governmental interest and it must be narrowly tailored to achieve this interest. The city's interest in enacting the curfew ordinance was to reduce juvenile crime and victimization, while promoting juvenile safety and well-being. The plaintiffs conceded, and the court agreed, that the city had a compelling interest in protecting the welfare of its children.

The remainder of the court's analysis consisted of the determination as to whether the statute was narrowly tailored to achieve the city's interest. In order to be narrowly tailored, there must be a nexus between the stated government interest and the classification created by the ordinance. The city provided statistical information that tended to show that crimes committed by juveniles tnd crimes committed against juveniles were most likely to take place during the curfew hours. Although the information presented did not provide precise data concerning the number of juveniles who are victims of crimes during the curfew hours, or the number of juveniles who are victims of crimes committed at these times, the data is sufficient to demonstrate that the classification created by the ordinance "fit" the city's compelling interest.

The court was also convinced that the curfew ordinance used the least restrictive means of accomplishing the city's goal. The ordinance included a variety of defenses or exceptions that made it possible for affected minors to remain in public areas during curfew hours. Although the district court discounted the effect of these defenses on the ordinance as a whole, the circuit court found that the defenses were the most important consideration in determining whether the ordinance was narrowly tailored. The court noted that previous cases have found similar ordinances to be unconstitutional because they did not contain any defenses that would allow minors to participate in activities that were constitutionally protected.

It was conceded that the ordinance would restrict some late-night activities of juveniles; if it didn't inhibit some activity, there would be no purpose in having such an ordinance. However, when these restrictions were balanced with the compelling interest sought to be addressed, the impositions were minor. Because of the defenses mentioned above, there were minimum burdens placed upon minors' constitutional rights.

In addition to the claims made by the minor plaintiffs, the parents of those minors argued that the curfew ordinance violated their fundamental right of privacy because it dictated die manner in which their children were to be raised. The court conceded that the parents had a right to rear their children without undue governmental interference. However, the court was convinced that the ordinance presented only a minimal intrusion on the parents' rights. The only aspect of parending affected by the ordinance was the parents' right to allow a minor to remain in public places, unaccompanied by a parent or guardian or other authorized person, during the hours restricted by the curfew.

Research Rererence: Sands & Libonati, Local Government Law §14.11.

J-R.