The New York Civil Liberties Union today filed papers in an appellate court in support of a lawsuit challenging Rochester's curfew law. The filing asked the court for permission to file a friend-of-the-court brief arguing that the curfew violates the constitutional rights of parents and their children.

The case, Jiovon Anonymous and Thomas Anonymous v. City of Rochester, is before the New York State Appellate Division, Fourth Department. In February 2007, a lower court upheld the curfew, which prohibits children younger than 17 from being in any public place between 11 p.m. and 5 a.m.

“City leaders must strive to strike a balance between protecting the public and preserving our constitutional rights,” said Gary Pudup, director of the NYCLU's Genesee Valley chapter and a retired Monroe County Sheriff's Police Lieutenant. “Improving public safety is laudable, but there are ways to do it that don't involve infringing on the Constitution.”

The NYCLU contends 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.

In an attempt to shield children's First Amendment rights, the curfew provides exceptions to enforcement if minors can prove they are in a public place for the specific purpose of exercising “fundamental rights,” such as the freedom of speech or religion. But those exceptions are defined too vaguely, which chills speech. Moreover, it imposes the burden on minors to adequately explain that they are engaged in constitutionally protected activity.

“Teens have to prove to a police officer that their evening activities are constitutionally protected,” Pudup said. “This assumes that our kids are well-versed in the complexities of First Amendment law. Undoubtedly, a lot of teens will choose to skip protected activities simply because they don't want to face a legal examination, under threat of arrest, on the way home.”

The City Council enacted the curfew in September 2006 following a series of homicides that stunned the community. Though the curfew's purported purpose is to help prevent young people from being victimized by crime or engaged in criminal behavior, there is no data to support that it has improved public safety. The city has also recognized that the curfew disproportionately affects youth of color.