Lost In The Fog Of Law … In Massachusetts

Lost In The Fog Of Law … In Massachusetts

By Scott Forsyth This article appeared in the ‘Daily Record’ on April 8, 2009. In a previous column, I wrote about the vagueness of Rochester’s youth curfew. That curfew later was declared unconstitutional. Jiovon Anonymous v. City of Rochester, 56 AD3d 139 (Fourth Dept. 2008). The City of Rochester has taken an appeal to the New York State Court of Appeals; oral argument is set for April 28. In 1994, the City of Lowell, Mass. enacted a curfew virtually identical to Rochester’s ordinance. Lowell police have arrested hundreds of children since then, but last year made the strategic error of arresting two children who challenged the ordinance. The Supreme Judicial Court of Massachusetts heard oral arguments in Commonwealth v. A.I. and A.W. earlier this month. The ACLU submitted an amicus brief opposing the curfew. As in Rochester, Lowell’s ordinance includes an exception for children who are “exercising First Amendment rights”. The arrests of A.W. and A.I. demonstrate the limitations of such exceptions. A.W. was walking to his girlfriend’s house at the time of his arrest. Undoubtedly, the purpose of his visit would have involved conversation that is constitutionally protected, yet the curfew authorized his arrest because he was not speaking to anyone at the moment of his arrest. A.I. assembled peaceably with several friends, but the children dispersed when they saw the police — an understandable reaction for a child in Lowell. The curfew exception no longer applied to A.W. because he no longer was “assembled” with others at the moment of his arrest. A First Amendment exception necessarily will be ineffective because no one speaks constantly and all assemblies, eventually, disperse. The First Amendment was not intended to protect only those who filibuster, and a law that prohibits peaceable assembly of minors, while excepting minors who are exercising their right of peaceable assembly, is an oxymoron. The Founding Fathers designed the First Amendment to be vague and expansible to protect countless forms of expression. That’s why “First Amendment jurisprudence is a vast and complicated body of law that grows with each passing day. As a result, criminal conduct cannot be defined by simply referring to the title (First Amendment) or subtitle (speech or assembly) of a particular right.” ACLU of New Mexico v. City of Albuquerque, 128 N.M. 312, 327 (1999). As in Rochester, the Commonwealth of Massachusetts argued that minors have no constitutional right to “freedom of movement.” The Supreme Judicial Court of Massachusetts seems a poor forum for the argument, since that court held more than half a century ago that “mere sauntering or loitering on a public way is lawful and the right of any man, woman, or child.” Commonwealth v. Carpenter, 325 Mass. 519 (1950). If children do not have a fundamental right to intrastate travel, then a perfunctory showing that children — however few — have committed crimes during the daytime as well as in the evening, presumably would justify a law prohibiting children from being outdoors unaccompanied by a parent at any time of the day. Rochester crime statistics show that children are more than twice as likely to fall victim to crime between 3 and 9 p.m as during curfew hours. If a nighttime curfew has a rational basis — and that’s all that’s required according to the City of Rochester and the Commonwealth of Massachusetts — then, surely, an afternoon curfew is permissible as well. In fact, why not impose a 24 hour curfew? In the first two years of curfew enforcement, Rochester police seized 709 children. Not one was released based on any of the curfew’s vague exceptions. Since 1994 those exceptions have not protected a single child in Lowell either. Curfews with those vague exceptions have spread nationwide since the mid1990s. I’ve searched in vain for any recorded case, any study on curfews, or even a single anecdote in which any child ever has been spared from arrest based on any of those supposed exceptions. Obviously, they are not used to protect children’s constitutional rights, but instead to protect curfews from constitutional challenges. Children lack the right to vote out of office those who deprive them of liberty. You are not so disenfranchised: Please advocate for our children when the candidates for city council solicit your support this year.