Nighttime Curfews Or You Wanna do What to my Kid?
by Mary McCarthy
From Home Education Magazine, Jan/Feb, 1998
Last July 10, my local weekly newspaper carried a front page article about the efforts of the local PTA and police to institute a curfew on the those under 18 between 10 p.m. and 5:30 a.m. Touted as a way to prevent trouble from occurring and not as a punishment, it would protect our young people from being "exposed to drugs, criminal activity and other" (unspecified) "threats to their physical and mental health." The Mayor offered these comforting words, "There are provisions. It's not like as soon as 10 p.m. comes you're going to be locked away and that's it. If there is a public function and the police are notified, things will be taken care of appropriately."
Did I read that right? My child would need to notify the police department if he was going to be out of his own home after 10 p.m.? Otherwise he will be locked away? Will the police department have the power to grant or withhold permission? I don't think so.
Time was a factor here. The local paper is published on Thursday, the council meeting was scheduled for the following Tuesday. Knowing I needed to reach a lot of people quickly I decided to write a 'letter to the editor'. But what would I say? I didn't want to defend the criminal behavior of a very small minority, nor did I want to sound like a hysterical parent. My son has never been in trouble with the police, nor does he wander the streets of this .75 square mile metropolis at night. However, occasionally he loses track of the time and has to walk home from his friend's house late. So I did some research and figured the details would come to me.
One of the first things I found on the Internet was a Justice Department Report on Curfews from the White House. "President Clinton believes that curfews, when they are backed by a community of support and are a part of a larger plan to help fight juvenile crime, can play an important role in keeping our children safe." I also found a Juvenile Justice Bulletin from April 1996 which included a lot of information about various curfews around the country.
I also found a wealth of information, which I ultimately used to write my letter, at the American Civil Liberties Union's (ACLU) web site. They have successfully challenged nighttime curfews in courts all over the country. They even have a handy 'bust card' you can download for your young people to carry with them. It gives instructions for what they should and shouldn't do if arrested or detained by authorities.
I wrote my letter from the standpoint that I am a taxpayer and that if the Borough arrested or detained a youth for curfew violation it could very well be sued for violating the youth's Constitutional rights, including their civil rights. As a taxpayer I would end up paying the financial penalties of such illegal actions. It avoided my having to personally attack the Mayor, the Council, the Borough, the PTA, the police department, and any individual who was pressuring the Council to enact the curfew. It also enabled me to avoid taking a stand against political pressure from the White House.
At the ACLU web site I found not just legal references, but some very good reasons why curfews are unconstitutional. I chose three cases because they had some good points and, with Letters to the Editor, space is a consideration. There are many different cases with some great points; I selected ones I liked.
The first is Hutchins v. District of Columbia. U. S. District Judge Emmet G. Sullivan issued a permanent injunction against D.C.'s curfew, ruling that minors "possess a fundamental right to free movement to participate in legitimate activities that do not adversely impact the rights of others." He also noted that curfews violate the rights of parents to make responsible decisions about how to raise their own children, and in doing so do nothing to make the streets safer. Arthur Spitzer, Legal Director of the ACLU of the National Capital Area, further noted, "The proper response to juvenile crime is to arrest the criminals, not to put thousands of law-abiding young people under house arrest."
I also found some good points in the 1996 decision declaring Henderson, Kentucky's curfew law unconstitutional. U.S. District Judge Joseph H. McKinley found that the city could not offer any proof that minors were subject to a greater threat of violence and abuse between 1:00 a.m. and 5:00 a.m., therefore it could not be said that a curfew ordinance served a compelling government interest, therefore it "constitutes an unconstitutional infringement on the rights of minors." He also noted that the religious and civil exceptions written into the law were so vague as to be "susceptible to the moment-to-moment opinions of a policeman on the beat and to arbitrary and discriminatory enforcement."
Perhaps the most interesting case is Nunez v. City of San Diego. San Diego's curfew prohibited children 17 and under from being out in public to 'loiter, wander, idle, stroll and play" after 10 p.m. Exceptions included school-sponsored events, supervision by a parent or while on an emergency errand for a parent. The court determined that the law unfairly blocked teens from exercising their right to free speech. They could not, for example, stay out late to attend a political rally, or to pray at midnight Mass. San Francisco Federal Appeals Court Judge Charles Wiggins noted that the curfew burdened parents as well as minors by usurping their rights as guardians, "Without proper justification, it violated the fundamental right to rear children without undue interference.
Almost all curfew proposals include provisions for parental fines. For example, Dallas, Texas can fine a parent up to $500 for their child's curfew violation New Orleans, Louisiana can also fine the parent up to $500 and order 60 hours of community service in addition to court costs.
Some curfews have withstood legal challenges because they include more than a curfew. The Dallas program includes youth activities including Law Enforcement Explorers, a school liaison unit, Law Enforcement Teaching Students (LETS), midnight basketball and the Police Athletic League (PAL). Most successful curfews include a staffed center where children can be held until parents can pick them up. Staff can include law enforcement personnel, ministers and counselors. The New Orleans program includes staff from LSU Medical Center's Department of Psychiatry. These appear to be very expensive programs.
I used this information, got it down to around 400 words, and faxed the letter to both local weekly papers on Sunday afternoon. I chose both because they have the same publisher and fax number.
On July 17, the newspaper published not just my letter, but a tiny little legal notice that the Borough had adopted ordinance # 97-09, a juvenile curfew on July 15, 1997. The other paper published the letter on July 23. I figured that was the end of it, but I had made it clear that I knew the law, and a lawsuit was a possibility if my child were harassed for a curfew violation.
A few weeks later my son informed me that he had heard the curfew had been repealed. Not having seen anything in the paper and not being interested enough to attend Council meetings, I wasn't sure it wasn't just wishful teenage thinking, but it was hopeful news.
On September 18, the same weekly newspaper carried another front page story indicating the curfew ordinance was up for adoption on the Council's agenda for the following Tuesday. Oh. Something must have happened to void the July 17th adoption of the ordinance.
The following week's paper carried a page 3 article that explained the council had voted unanimously to table the ordinance indefinitely following a councilman's recommendation on behalf of the Laws and Licenses Committee to do so. The Mayor was quoted as saying, "I doubt very much if it will be brought up again by the end of this year because we see an improvement with our police patrolling the streets."
I don't know if it was my letter that turned the tide but it couldn't have hurt. While researching this issue I found a quote from Martin Luther King's "Letter from the Birmingham Jail." In it he wrote, "An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself." Good point.
And I'm happy to report that even though we have no curfew my son's mental and physical health seems to be intact.
Many of these articles are no longer in print, but could be found in the newspaper archives.
"Garwood Curfew Sought", Cranford Chronicle, July 10, 1997, page 1.
"Justice Department Report on Curfews: A Strong Part of a Community's Efforts to Keep our Children Safe", May 30, 1996.
"A Summary of Curfew: An Answer to Juvenile Delinquency and Victimization?", April 1996.
"D. C. Curfew Law Struck Down" ACLU press release, Tuesday October 29, 1996.
"KT City Curfew Declared Unconstitutional; Federal Court Blocks Henderson Measure", ACLU press release, July 19, 1996. Nunez v. City of San Diego, U. S. 9th Circuit Court of Appeals.
A Summary of Curfew: An Answer to Juvenile Delinquency and Victimization? Op cit.