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

Author:Alexander Korecky

The Supreme Court of the United States must accept a juvenile curfew case to resolve the inconsistencies among lower courts because disparate curfew jurisprudence nationwide has led to a breakdown of any semblance of legal uniformity, and a breadth of empirical studies suggests juvenile curfews often lack the efficacies the government asserts they provide.

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 lawsoften city ordinanceswhich 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.
* 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 SOCY (July 21, 2009),
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;
(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
(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
(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)
(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
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
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 240405.
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)

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