Genesee Valley Chapter — Curfews

The History of Rochester’s Curfew Ordinance In September 2006, the City of Rochester implemented a curfew that makes it a criminal act for a minor younger than 17 “to be in or upon any public place within the City at any time between 11 p.m. of one day and 5 a.m. of the immediately following day” (midnight to 5 a.m. on weekends). The NYCLU contends that youth curfews violate “the right of the people peaceably to assemble” granted by the First Amendment and that curfews deprive minors of the right to free movement, a fundamental component of the liberty guaranteed by the Fourteenth Amendment. And, as Rochester’s experience demonstrates, curfews invite discriminatory enforcement. The NYCLU also argues that the curfew infringes on the long-recognized rights of parents to direct the upbringing of their children by not including an exception allowing children to engage in evening activities with the permission of their parents. Rochester had considered a curfew as far back as 1980. At that time, Rochester’s corporation counsel wrote: “The mere presence of a minor on the public street constitutes conduct which is essentially innocent in nature” and “does not have more than tenuous connection with crime prevention.” The corporation counsel further opined that curfew laws “fail to provide standards by which conduct may be tested and place too much discretion into the hands of the police, thereby encouraging discriminatory enforcement.” He concluded that “a New York Court would likely find a curfew law adopted for minors to be unconstitutional.” See 1980 Study part 1 and 1980 Study part 2. Curfews are ineffective in combating crime since the penalties imposed for curfew violations are minor compared to the penalties already available for the types of criminal activity that curfews seek to prevent. See Adams, The Effectiveness of Juvenile Curfews at Crime Prevention, 587 Annals 136 (May 2003), original available at http://ann.sagepub.com/cgi/content/abstract/587/1/136. Further, far fewer crimes are committed during curfew hours than any other time of day, as shown in this chart prepared by the City of Rochester. See also The Impact of Juvenile Curfew Laws in California. And more crimes occur on private property, where the curfew does not apply, than on public property. Almost immediately, the data collected by the City of Rochester showed that the curfew had no discernable effect on crime, but instead penalized innocent children for their status. The “City Curfew Pilot Report” shows that 156 children were seized by the police under the curfew between Sept. 5 and Dec. 5, 2006, and that 95 percent of the children arrested for curfew violations were either black or Latino. The report failed to establish “relationship between the implementation of the curfew and improved public safety, as measured by reported crime, juvenile victimization, and arrest. This is a finding that is consistent with other evaluations of curfews throughout the country.” Despite the report, the City Council declared the curfew a success and extended its duration until Sept. 4, 2007. In May 2007, the city released the Curfew Pilot Project 180 Day Report, which showed that 224 youths had been seized by the police, and that 93 percent of the children arrested for curfew violations were black or Latino. Again, the report showed that “most juveniles appear to be engaged in fairly innocuous behavior (e.g. walking home from the store or a friend’s house) when violating the curfew.” After examining this report, the City Council again extended the curfew, this time until Sept. 4, 2008. A report on the effect of the curfew from Sept. 5, 2006 through Sept. 3, 2007 indicated that a total of 433 children were seized by the police for curfew violations during the first year of the curfew, and that 94 percent of those children were black or Latino. The number of children detained at the curfew center increased sharply during the second six months of the curfew. Since Nov. 19, 2006, “there has not been a single incident documented where a juvenile has simply received a verbal warning.” The report again acknowledges that “many juveniles appear to be engaged in fairly innocuous behavior (e.g., walking home from the store or a friend’s house) when violating curfew.” On Oct. 27, 2006, a lawsuit was filed in State Supreme Court challenging the curfew’s constitutionality. The plaintiffs, a father and son, are Rochester residents. The son was a minor when the lawsuit was filed. Judge Thomas M. Van Strydonck upheld the curfew in a ruling issued Feb. 16, 2007. The plaintiffs appealed the decision. Although the plaintiffs’ attorney sits on GVCLU’s legal committee and Genessee Valley Chapter fully supports the challenge to the curfew as a matter of policy, the chapter does not itself represent plaintiffs or have any formal role in the case, at this time.

David Ahl

Update (October, 2008) While the appeal was pending, the city released the Year Two Curfew Report. As before, most children are taken into custody while engaged in innocuous and otherwise lawful behavior. The overwhelming majority of curfew arrestees are still black or Latino. On Oct. 10, 2008, the Appellate Division, 4th Judicial Department, declared Rochester’s curfew unconstitutional. The court held that the curfew is “inconsistent with Family Court Act § 305.2 and Penal Law § 30.00,” because the curfew authorized the Rochester police to “detain a minor or take a minor into custody based on a violation of § 45-3.” Pursuant to Family Court Act § 305.2 (2), however, a police officer is authorized to take a child under the age of 16 into custody without a warrant only in cases where an adult could be arrested for a crime, and a violation does not fall within the definition of a crime.” The court further held that a child under the age of 16 could not be prosecuted for a curfew violation, because under Penal Law § 30.00, “the age of 16 is the minimum age for criminal responsibility.” The court ruled that the curfew violates children’s “fundamental right of free movement” and “is unconstitutional under the Equal Protection Clauses of the New York and United States Constitutions.” The court also held that, in depriving children of the right to be in public places, the curfew “imposes an unconstitutional burden on the First Amendment rights of juveniles.” The court decided that the curfew “interferes with plaintiff father’s right to direct and control the upbringing of plaintiff son.” The City of Rochester has appealed to the State Court of Appeals.  
City of Geneva In September, 2007 Geneva, NY announced it was also considering a curfew. Search the Finger Lakes Times for “curfew” for local news media coverage. Partially in repsonse to our letter to the Geneva City Council, the idea was dropped.  
Town of Hamlin (northwestern Monroe County) On December 10, 2007 the Town Board of the Town of Hamlin, in northwestern Monroe County, adopted a teenage curfew. Here is the text of the law as supplied to us by the Town Clerk of Hamlin. The Hamlin Town Supervisor has reported that the curfew is needed as without it the sherriff was unable to deal with the problem of teenagers creating a disturbance.  
Town/Village of East Rochester The full text of East Rochester’s curfew is online and can be reached through its Building Department web site. Click on the link at the top of the page for their codebook; then open the Table of Contents at the top followed by opening Part II, General Legislation. It is chapter 79. (It cannot be permanently linked to directly.) It was adopted in 1996.  
GVC-NYCLU in the News Curfew — Legal Council Scott Forsyth considers the legitimacy of curfews. (The Daily Record)  
Late at night, Lost in the fog of a curfew

By Legal Counsel Scott Forsyth

Tyshawn Caldwell, Frederick Lewis, and Devon Scott — three kids from Rochester, N.Y., who were tragically murdered in the spring and summer of 2006. The community was outraged and demanded that its leaders take action.

What did Rochester do? Among other things, on September 5, 2006, the City Council adopted a juvenile curfew law. Rochester City Code § 45.

City Council took this action knowing that many studies have failed to find any causal relationship between curfews and either the reduction of crime by juveniles or the victimization of juveniles. See, e.g., Adams, The Effectiveness of Juvenile Curfews at Crime Prevention, 587 Annals Am. Acad. Pol. and Soc. Sci. 136, 138 (2003). But a curfew was its way of showing concern.

Curfews restrict movement, which all persons, including minors, have a constitutional right to engage in. Ramos v Town of Vernon, 353 F.3d 171, 176 (2nd Cir. 2003). Hence, to withstand challenge, a curfew must be narrowly tailored to meet a compelling state interest. And the city attorney tried to narrowly tailor the ordinance.

Minors under the age of 17 cannot be in any public place between 11:00 P.M. and 5:00 A.M. weekdays and midnight and 5:00 A.M. Friday and Saturday. Certain after-hour activities are exempt, such as work and attendance at school.

Notable for its wordiness is the exemption for being “in a public place for the specific purpose of exercising fundamental rights such as the freedom of speech or religion or the right of assembly protected by the First Amendment of the United States Constitution or Article I of the Constitution of the State of New York, as opposed to generalized social association with others.” Rochester City Code § 45-4.

A minor stopped after-hours has the burden of proving that one of the exemptions applies. If he or she cannot, he or she may be taken into custody and transported to a place designated by the Chief of Police for “further intervention in accordance with law.” Id. § 45-6.

OK, reader, back to the wordy exemption. Can you identify all of the fundamental rights? Are you familiar enough with the case law arising under the First Amendment and Article I of the New York Constitution to know what expressive activities are protected and in what situations? Do you know what a “generalized social association” is and why the First Amendment and Article I do not protect it?

If you answered no, join the crowd, including this author. If you are flummoxed, rest assured your typical minor under the age of 17 knows less.

The exemption quoted turns the Due Process Clause on its head. The Supreme Court has consistently held that “the terms of a penal statute… must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties….” Connally v Gen. Constr. Corp., 269 U.S. 385, 391 (1926). Not satisfying this “notion of fair play” means that a statute is void for vagueness.

When a statute’s scope “is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater specificity than in other contexts.” Smith v Goguen, 415 U.S. 566, 573 (1974). This is so because the mere threat of a penalty may chill protected speech.

Not only is the exemption language too vague, but it requires the minor to disclose to the police information about his or here expressive activity that he or she may prefer not to. Long ago the Supreme Court “recognized the vital relationship between freedom to associate and privacy in one’s association.” NAACP v Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (government cannot compel an unpopular advocacy group to disclose its membership lists).

More recently, the Supreme Court reaffirmed a speaker’s right to anonymity when it struck down an ordinance that imposed a fine on the distribution of unsigned leaflets. McIntyre v Ohio Elections Comm’n, 514 U.S. 334 (1995).

The minor stopped after-hours following his or her attendance at a book discussion, organizing session, or a demonstration faces a dilemma. Surrender the privacy of his or her association or be detained and carted off to a place designated by the Chief of Police. Imposing such a choice on any person is unconstitutional.

Actually, the curfew law may have a defect even greater than its vagueness and loss of privacy feature. It does not contain an exception for being out after-hours with the permission of a parent. Consequently, the law trammels on “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v Granville, 530 U.S. 57, 66 (2000). I will explain more in another column.