Genesee Valley Chapter — Curfew Fog Lifted In New York

Curfew Fog Lifted In New York

By David Ahl A version of this article appeared in the ‘Daily Record’ on July 15, 2009. It’s finally clear: Curfews are restrictions to be set by parents, not the government. The New York State Court of Appeals declared June 9 that Rochester’s youth curfew ordinance “violates the Federal and New York State Constitutions,” for three reasons. Jiovon Anonymous v. City of Rochester, 2009 Slip Op 04697. First, “[F]reedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful — knowing, studying, arguing, exploring, conversing, observing and even thinking.” Aptheker v. Secretary of State, 378 US 500, 520 (1964) (Douglas, J., concurring). The very purpose of Rochester’s curfew was to prohibit free movement of minors during specified hours. Second, “the curfew imposes an unconstitutional burden on parents’ substantive due process rights” to “allow their children to function independently at night, which some parents may believe is part of the process of growing up.” The court held that the city may not usurp the role of parents to set the curfew that is appropriate for their child. “The … notion that governmental power should supersede the parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition.” Hodgson v. Minnesota, 497 US 417, 446-447 (1990). Third, Rochester’s curfew simply was not justified by the facts. The court held that the classes targeted by the law must be “determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions,” quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 725-726 (1982). To enact a valid curfew ordinance, a legislature must “carefully study the contours of the problem it is seeking to address and legislate in accordance with its findings.” Ramos v. Town of Vernon, 331 F.3d 315 (Second Cir. 2003). Rochester’s mayor and city council did precisely the opposite, when they decided to enact a youth curfew, and only then seek statistics to justify it. The city made “no effort … to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized” (quoting Ramos). “Quite simply,” the court wrote, “the proof offered by the city fails to support the aims of the curfew in this case.” The court also observed that many of the crimes alleged to justify the curfew’s occurred outside of curfew hours. Furthermore, “it is the adults, rather than the minors, who commit and are victims of the vast majority of violent crime … during curfew hours.” The city presented no evidence regarding “where the crimes counted took place (i.e., whether on private or public property).” And a curfew that prohibits children from being outdoors can’t possibly protect them from crimes that occur indoors. Judge Graffeo concurred in the outcome, but did not reach the constitutional issues. In her opinion the curfew conflicted with Family Court Act §305.2. A police officer “may take a child under the age of 16 into custody” only if he has probable cause to believe the child has committed an act that would be a crime if it had been committed by an adult. Matter of Victor M., 9 NY3d 84 (2007). The offense defined by the curfew was a violation, not a crime, and wouldn’t be an offense at all if committed by an adult. Judge Graffeo could not sever the application of the curfew to 16 year olds from its illegal application to children younger than 16, therefore she invalidated the whole ordinance on statutory grounds. The court did not address the ordinance’s vagueness. In a footnote, the majority stated that the city’s curfew did not provide an exception for children who are “generally exercising First Amendment rights,” as many other curfews do. Such an exception is an oxymoron because, by design, curfews prohibit all peaceable assembly during curfew hours. The Appellate Division recognized that defect when it struck down the curfew: “By subjecting juveniles to arrest merely for being in a public place during curfew hours, the ordinance forcefully and significantly discourages protected expression.” In the end, if government has the power to declare that simply being in a public place is a crime, then we truly have given up “our system of ordered liberty in favor of a system of well-kept order alone.” People v. Scott, 79 N.Y.2d 474 (1992). The Court of Appeals wisely declined to take that step.