Curfew must not Ring Tonight: Judicial Confusion and Misperception of Juvenile Curfew Laws

CURFEW MUST NOT RING TONIGHT 1 : JUDICIAL CONFUSION AND MISPERCEPTION OF JUVENILE CURFEW LAWS ALEXANDER KORECKY * I. I NTRODUCTION 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; (continued) 832 CAPITAL UNIVERSITY LAW REVIEW [44:831 (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 (continued) 2016] JUVENILE CURFEW LAWS 833 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.”). (continued) 834 CAPITAL UNIVERSITY LAW REVIEW [44:831 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. B ACKGROUND 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]” vague 12 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...