Utica Curfews

NYCLU Letter to the Mayor and City Council August 6, 2008 Mayor David R. Roefaro & Members of the Utica Common Council Council President: William C. Morehouse 5th District Councilor Bill Phillips 1st District Councilor Frank Vescera 6th District Councilor Teresa A Wojnas 2nd District Councilor James A. Zecca Councilor at Large Patrick J. Donovan 3rd District Councilor Rocco Giruzzi Councilor at Large Frank Meola 4th District Councilor Joan Scalise Councilor at Large Lorraine E. Arcuri Utica City Hall 1 Kennedy Plaza Utica, NY 13502 Dear Mayor and Councilors, Tonight you are asked to consider a proposal to impose a curfew on youth age 15 and under between the hours of 10 p.m. and 6 p.m., and in only one district of the City of Utica. This proposal has serious constitutional problems that should prevent it from approval by the Utica City Council. As the director of the Central New York Chapter of the NYCLU, the New York State affiliate of the ACLU, I bring some of these concerns to your attention. The current proposal is poorly drafted and overly vague; it would fail to withstand an inevitable court challenge should it be enacted by the City Council. The ACLU is generally opposed to teen curfews on constitutional grounds because they involve governmental pre-judgment and interference with parental decision making, and place youth into the custody of the police even when they have not committed any crime, disturbance or mischief. Late night curfews do not prevent juveniles from being victims or perpetrators of crime, as most youth crime occurs between the hours of 3:00 p.m. to 6:00 p.m. Instead, curfews end up punishing and placing severe restrictions on the vast majority of teenagers who otherwise obey the law. The enforcement of teen curfews can also divert and drain police resources sorely needed for effective urban policing and crime prevention. As seen in Rochester, a curfew can also create serious and challenging new problems for police and communities as youth move their activities into more private spaces where the dangers they face may be less visible but may also be more severe. Cities like Syracuse have repeatedly rejected curfews in favor of much more effective methods to intervene comprehensively with at-risk youth and to improve the quality of life in threatened neighborhoods. The controlling case precedent in New York State offers instructive commentary on the constitutional problems involved with teen curfews. In a 2003 decision in Ramos and Ramos vs. Town of Vernon, Connecticut, the U.S. Court of Appeals for the Second Circuit emphasized that a youth curfew cannot pass legal muster based on assumptions or pronouncements about problems with youth violence or crime, or general concerns about the welfare of youth or the decisions of their parents or guardians. Nor may a municipality attempt to justify a curfew by reciting interests that have been used to support curfew ordinances in other municipalities. The Court clearly indicated that a town may not pass an ordinance that arbitrarily targets a minor’s rights to be out at night (even with parental permission) in what amounts to a ‘knee jerk reaction’ to local events. A municipality would have to demonstrate clear evidence of a direct and substantial harm to the targeted youth – i.e. youth of that age and at that time – and also that the proposed restriction will primarily benefit those youth by directly and substantially addressing that harm. Additionally the Court stated that “when evidence suggests that a curfew targeting juveniles was passed for the benefit of others in the community, that law’s constitutionality is more suspect.” The current proposal, as drafted, has many additional flaws:

• To impose a curfew only on youth in one district of a city imposes an extremely arbitrary restriction that violates the 14th Amendment right to equal protection under the law. This alone would lead the courts to strike down such a law simply on its face.
• The current draft provides only one exception for youth who are out on the street during curfew laws, when they are participating in school, religious, or government events or events organized by non-profit groups. This is wholly inadequate and unreasonable. Under this proposed curfew, it would be illegal for a youth to be out after 10 with parental permission, even on the weekend, to attend a concert, to go to a late movie, study or work on a project with a friend at a coffee shop, or visit a relative’s home. It would be illegal for parents to send a youth on a late night errand to a corner store or all-night drug store. It would be illegal for a youth to be out when their travel was related to a family, medical or other emergency. It would be illegal for a youth to simply walk or bike home late from a friend’s house or from the home of a relative. These activities should not be criminalized. It is up to the parents, not the government, to decide what after-hours activities are appropriate for their child.
• It is likely that youth who are older than 15 will be stopped and questioned by police as a consequence of this proposal, even though they are not subject to its restrictions. If enacted, this law will invite unnecessary police contact with law-abiding youth who happen to be slightly older than the curfew threshold.
• How is an operator of an “establishment” as described in this proposal, say a pizza shop or an arcade or a movie theatre, supposed to know which teens among their customers is over or under 15. Will they be expected to card and record the age of everyone coming into their facility after 8 p.m. or 9 p.m.? Will this be expected of every business in Utica that operates after 9 p.m.? How can the City cite and fine a business owner or operator if the youth do not voluntarily identify their age at 9:45 p.m. or 9:55 p.m.? This provision has not been fully considered.
• There is almost nothing in the proposal to describe how the curfew is to be enforced. It says that children, parents and operators of businesses shall by cited, but not by whom. It says that penalties are to be imposed by the courts, but it does not say how individuals are to learn that they are called to appear in court. It is unreasonably vague to leave these questions open and unaddressed. If the police are to pursue these tasks, then how are they to identify youth or their parents for citation? What criteria are the police to use? How will this be done in a way that avoids selective enforcement? What will be the result of the interaction between a youth and a police officer? Will the youth be detained? Arrested? Taken into custody? Transported? And if so, to where, and for how long, and under what supervision? How will parents be notified? How will children be released back into their parents care? Will parents be required to leave home or leave work to retrieve their children, or will police be expected to transport children home? At what cost or hardship to the family? No local law or ordinance should proceed until these kinds of questions have been discussed, answered and codified in some way. It is striking that none of this has been dealt with in the current version of the law.
• The penalty section of the proposal indicates that either the youth or their parent/guardian may be cited and fined in amounts from $50 up to $500. How many 15 year olds have access to even the minimum amount? What will it mean to families of limited economic means if they are expected to pay both fines? If they cannot pay the fine, will it end up that only the youth from low-income families end up referred to the Probation Department for supervision as a Person In Need of Supervision (PINS)? No local law or ordinance should place youth into the criminal justice system at age 13 or 14 or 15 for no more than an inability to pay a fine that is unrelated to any crime. No local law or ordinance should set up a penalty scheme with such a foreseeable potential for differential consequences based on income or other financial circumstance.
• This is touted as a “pilot program” to be enacted for two to three months. This so-called “pilot” status is immaterial because the restrictions and penalties, and constitutional implications, are real during these three months. Additional the law states that it can be continued “indefinitely” if the Council majority approves. It is also ludicrous to suggest that statistics collected during this period would be enough to determine if there were any meaningful reduction in crime perpetrated by juveniles, or “gang activity,” or any measurable change in intangibles like parental “involvement” or “responsibility,” to say nothing of the putative effect of a curfew on these factors. No professional researcher would suggest that conclusions about causation from such data collection could be anything but spurious.

For the reasons described above and other considerations related to the strict constitutional tests a curfew law would have to withstand, this proposed curfew should not be enacted in Utica. Accordingly I urge you to reject this legislation, and to pursue the problems facing Councilman Zecca’s district, and other areas of Utica, through existing laws and creative alternatives that steer youth in the right direction or intervene more effectively and perhaps comprehensively when they go astray. Sincerely,  
Barrie Gewanter Director, CNY Chapter  
 
Cc: Linda Fatata, Utica Corporation Counsel Honorable Anthony Garramone (Retired) Beth Haroules, NYCLU Senior Staff Attorney