Curfew must not Ring Tonight: Judicial Confusion and Misperception of Juvenile Curfew Laws

• Author: Alexander Korecky
• Pages: 831-868

CURFEW MUST NOT RING TONIGHT1:

JUDICIAL CONFUSION AND MISPERCEPTION OF

JUVENILE CURFEW LAWS

ALEXANDER KORECKY*

I. INTRODUCTION

Juvenile curfew laws are becoming exceedingly popular in the United

States, especially in the nation’s largest cities. In 2009, 85% of U.S. cities

with populations above 180,000 had some form of juvenile curfew.2

Throughout the nation in that same year, at least 500 cities had a juvenile

curfew.3 Juvenile curfews are laws—often city ordinances—which require

children under a specified age to refrain from being in public places during

specified nighttime periods.4 Juvenile curfews normally have a variety of

Copyright © 2016, Alexander Korecky.

1 ROSE HARTWICK THORPE, CURFEW MUST NOT RING TONIGHT (1867), reprinted in A

HOOSIER SAMPLER: AN ANTHOLOGY OF INDIANA WRITERS 63–64 (2000).

* I would like to thank P rofessor Jacqueline Orlando for her guidance and for always

being available to brainstorm. I would also like to th ank Professors Dan Kobil and Mark

Brown for imparting upon me their expert constitutional knowledge throughout the past year.

More thanks to my friends Sean Heffernan and Eric Lundgren for helping me review and edit

this Comment. Last, but not least, a big thank you to my editor Rebekah Zimmerman, who

helped guide and focus my analysis all year.

2 Tony Favro, Youth Curfews P opular with American Cities But Effectiveness a nd

Legality Are Questioned, CITY MAYORS SOC’Y (July 21, 2009), http://www.citymayors.com/

society/usa-youth-curfews.html.

3 Id.

4 Note, Juvenile Curfews a nd the Major Confusion Over Minor Rights, 118 HARV. L.

REV. 2400, 2400 (2005) [hereinafter Major Confusion Over Minor Rights]. See, e.g.,

Bykofsky v. Bo rough of Middleton, 401 F. Supp. 1242 (M.D. Pa. 1975). The curfew

ordinance in the Bykofsky case is typical:

The curfew ordinance prohibits any minor under the age of eighteen

from being on or remaining in or upon the streets within th e Borough of

Middletown between the hours of 10:00 P.M. (minors under twelve years

of age), 10:30 P.M. (minors twelve or thirteen years of age), or 11:00

P.M. (minors fourteen through seventeen years of age) and 6:00 A.M.,

unless the minor comes within one of the following exceptions:

(a) The minor is accompanied by a parent (defined to include a legal

guardian, a person who stands in loco parentis, or a person to whom legal

custody has been given by court order);

(b) The minor is accompanied by an adult authorized by the parent to

take the parent’s place in accompanying the minor for a designated period

of time and specific purpose within a specified area;

(continued)

832 CAPITAL UNIVERSITY LAW REVIEW [44:831

(c) The minor is exercising first amendment rights protected by the

Constitution, such as free exercise of religion, freedom of speech, and the

right of assembly, provided the minor first has given notice to the Mayor

of the Borough by delivering to the communications center personnel at

the Borough Municipal Building a written communication signed by the

minor and countersigned if practicable by a parent of the minor which

specifies when, where, in what manner, and for what first amendment

purpose the minor will be on the streets at night during the curfew time

period;

(d) In a case of reasonable necessity but only after the minor's parent

has communicated to the Middletown police station personnel “the facts

establishing such reasonable necessity relating to specified streets at a

designated time for a described purpose including points of origin and

destination”;

(e) The minor is on the sidewalk of his residence, or on the sidewalk

of either next-door neighbor, so long as the neighbor does not object to

the minor's presence on his sidewalk;

(f) The minor is returning home by a direct route from, and within

thirty minutes of the termination of, a school activity or an activity of a

religious or other voluntary association, provided prior notice of said

activity and the place and probable time of termination has been given in

writing to the Chief of Police or the officer assigned by him on duty at

the police station;

(g) The minor has been authorized, by special permit obtained from

the Mayor, to be on the streets during the curfew hours for normal or

necessary nighttime activities inadequately provided for by other

exceptions in the ordinance;

(h) The minor is a member of a group of minors permitted by a

“regulation” issued by the Mayor to be on the streets during the curfew

hours for normal or necessary nighttime activities inadequately provided

for by other exceptions in the ordinance, there being too many persons

involved for use of the individualized permit procedure of ex ception (g)

above;

(i) The minor carries a certified card of employment;

(j) The minor is in a motor vehicle with parental consent for normal

travel, with interstate travel through Middletown excepted in all cases

from the curfew;

(k) A minor is seventeen years of age and is excepted from the curfew

by “formal rule” promulgated by the Mayor excepting designated minors,

minors in a defined group or area, or all minors seventeen years of age.

The ordinance further provides that it is unlawful for a parent having

legal custody of a minor knowingly to permit or by inefficient control to

allow such minor to be on o r remain upon the stree t in violation of the

curfew. “Knowingly” is defined as including knowledge which a parent

(continued)

2016] JUVENILE CURFEW LAWS 833

exceptions, such as the exercise of First Amendment protected speech,

which excuse minors from adjudication.5

Proponents of juvenile curfews assert that juvenile curfew laws support

the governmental interests of preventing juvenile crime and preventing

juvenile victimization.6 Detractors of juvenile curfews assert, in part, that

these laws do not further the aforementioned governmental interests and

even have detrimental effects to juveniles.7 Moreover, federal and state

courts disagree about how to analyze the constitutionality of juvenile curfew

laws.8 In short, the proper standard for juvenile curfew analysis is uncertain,

and, therefore, the Supreme Court of the United States must reassert its

authority by providing lower courts additional guidance in this very specific

area of constitutional jurisprudence.

The Court must accept a juvenile curfew case to resolve the

inconsistencies among lower courts, because disparate juvenile curfew

jurisprudence nationwide has led to a breakdown of any semblance of legal

should reasonably be expected to have concerning the whereabouts of a

minor in his legal custody. When the p olice find a minor in prima facie

violation of the curfew, the ordinance provides that the minor shall be

taken to the police station, the parent called, and the parent and minor

interrogated to determine the relevant facts, after which the minor is to

be released to the parent’s custody. If the parent cannot be located or

fails to take charge of the minor, the juvenile is released to the juvenile

authorities.

In the case of a first violation by a minor, the police send his parents

by certified mail written notice of the violation, warning them that further

violations will result in imposition of the penalty provided for in the

ordinance. Upon a second violation, a fine of twenty-five dollars plus

costs of prosecution is imposed upon the parents, with the fine increasing

in twenty-five dollar increments for each successive violatio n. Refusal

to pay the fine and costs results in imprisonment in the Dauphin County

prison for a period not to exceed ten days. Any minor who violates the

curfew ordinance more than three times shall be reported by the Mayor

to a society or organization whose purpose it is to take charge of

incorrigibles and delinquents and proceedings shall then be taken, under

the Juvenile Act, 11 P.S. § 50-101 et seq., before the juvenile court for

the treatment, supervision, and rehabilitation of the minor.

Id. at 1246.

5 See Major Confusion Over Minor Rights, supra note 4, at 2404.

6 David A. Herman, Note, Ju venile Curfews and the Breakdown of the Tiered Approach

to Equal Pr otection, 82 N.Y.U. L. REV. 1857, 1860 (2007).

7 Major Confusion Over Minor Rights, supra note 4, at 2404–05.

8 See id. at 2421 (“The [juvenile curfew] split involves wildly varying standards of

review, significant disagreement over the rights at issue, and dramatic differences in the way

in which cities must prove the need for a curfew.”). (continued)