Hutchins v. District of Columbia

FCC, Illinois Bell Tel. Co. 911 F.2d (D.C.Cir.1990). 785-86 HUTCHINS, al., Tiana Appellees, et true, out, points It ITTA that this Synovus Fin. Corp.

court v. Board of COLUMBIA, Appellant. DISTRICT OF Governors, (D.C.Cir. 1991), characterized rule against con No. 96-7239. sideration of issues raised intervenors United States Appeals, Court of by petitioners and not prudential as “a District of Columbia Circuit. jurisdictional

restraint rather than a bar.” in deciding But to consider the interve- Argued En Banc Jan. 1999. there, nor’s issue the court relied on the Decided June that the relevant fact issue was “an essen predicate” tial to an issue raised

petitioner. Id. That circumstance is cer

tainly not present Synovus here. The offered a

court second reason to hear the

claim—that the intervenor was not “the

losing party proceed the administrative

ing,” and thus did not “every have incen petition Here,

tive for review.” Id.

ITTA itself claims it “through

members, participated fully in proceed below,”

ings ITTA Br. at Reply and that

its “members raised the issue of the neces

sity multiple X-Factors,” very issue

it seeks to raise this court.

Thus, special neither of the circum-

stances cited in Synovus present. Fur-

thermore, ITTA presents no why reason petitioned

could not have in its own right. decline arguments.

We to consider its

Conclusion

The FCC’s decisions to select 6.0% as component

the first of the X-Factor and to the 0.5%

retain CPD are reversed and

remanded to the agency expla- for further

nation; the FCC request of course

stay of this order pending its reconsidera- petitions

tion. review are other-

wise denied.

So ordered. Judge WALD joins, and Circuit

TATEL III, Circuit II and joins in Parts Part III. joins in Judge GARLAND filed Circuit opinion Dissenting the cause argued Rosenbaum J. Steven TATEL. Judge him on the briefs With appellant. Ferren, Corporation Coun- M. were John SILBERMAN, Judge: Circuit Reischel, Corpora- Deputy sel, L. Charles appeals District of Columbia A. Levine. Counsel, and Jason tion summary judg- grant court’s district Ruff, Corporation Deputy F. Charles group plaintiffs/appellees, ment Counsel, appearance. an entered business, private minors, and a parents, United States the District’s Nagle, Assistant E. enjoining Mark enforcement curi- as amicus that it Curfew, holding the cause vio- Attorney, and argued Juvenile on the brief him of minors appellant. rights With ae for the fundamental lates Lewis, At- States A. United unconstitutional- Wilma and is parents were their and Kimberly and Craig our circuit torney, panel R. Lawrence A divided ly vague. Attor- court, Brown, rehearing States Assistant United and N. district affirmed the be- plurality A neys. granted. banc was en no fun- implicates the curfew lieves that cause for argued Plotkin Robert S. par- or their of minors rights damental Ar- was him on brief appellees. With curfew does assuming the Even ents. Spitzer. thur B. that it sur- we hold rights, implicate such on the brief for P. Farris was Michael And, it scrutiny. does heightened vives Legal Defense Home School amicus curiae or Fourth Amend- the First not violate Association. minors. rights of ment EDWARDS, Judge, Chief Before: I. WILLIAMS, SILBERMAN, WALD, Council, deter- The District of Columbia SENTELLE, GINSBURG, and victimiza- juvenile crime mining that ROGERS, RANDOLPH, HENDERSON, prob- was a serious in the District tion GARLAND, Judges. TATEL, Circuit and unanimously growing lem—and worse— Act of Curfew adopted the Juvenile by Circuit the Court filed Opinion for under from juveniles and which bars Judge SILBERMAN. by unaccompanied place being public in a su- equivalent adult without GINSBURG, parent or WALD, Judges Circuit Sunday on p.m. 11:00 pervision from HENDERSON, and KAREN LeCRAFT a.m. on the fol- Thursday to 6:00 through I, III, & in Parts IV. join GARLAND to 6:00 a.m. midnight and from lowing day and part Opinion concurring Sunday, subject to cer- and Saturday by Chief concurring the result filed defenses. See tain enumerated D.C.Code EDWARDS, with whom T. Judge HARRY The cur- §§ 6-2183 Ann. and Judges GARLAND Circuit WALD (defined “any that a minor provides few in Part join II. years,” but not age of 17 person under or a mar- emancipated minor judicially “a concurring part Opinion minor”) public cannot remain ried by Circuit the result filed concurring in any establish- premises on the place or and GARLAND. Judges WALD dur- Columbia within the District of ment guardian A or parent hours. ing curfew part and concurring in Opinion permit- knowingly by an offense Judge commits by part filed Circuit dissenting in control allow- through insufficient ting, or ROGERS, Judge whom Circuit with ing, the minor to violate the curfew. perform service, community Owners, operators, employees or public required to attend parenting classes. also establishments violate the curfew Appellees sued the District of Columbia knowingly allowing the minor to remain an seeking injunction against enforcement premises, on the unless the minor has of the curfew and a declaration that the opera- refused to leave and the owner or curfew violates the minors’ Fifth Amend- tor police. has so notified the The curfew ment Due Process and Equal Protection eight contains “defenses”: not violat- rights movement; freedom violates (1) if ed the minor accompanied by parents’ Fifth process Amendment due parent minor’s or guardian any or other rights children; to raise their violates the person 21 years or older authorized minors’ First Amendment to free- parent minor; to be a caretaker for the of expression dom assembly; violates (2) on an errand direction the minors’ Fourth Amendment to be parent, caretaker, guardian, minor’s free from unreasonable searches and sei- (S) any stop; without detour or in a vehi- zures; and is unconstitutionally vague. travel; cle involved in interstate en- The district granted court summary judg- gaged employment certain activity, or ment appellees enjoined enforce- going to employment, or any without ment of the curfew. Hutchins v. District (5) detour or stop; involved in an emer- Columbia, (D.D.C. 942 F.Supp. (6) gency; on the sidewalk that abuts the 1996). The court concluded that “it is a minor’s or the next-door resi- neighbor’s legal principle well-settled right the to dence, if the neighbor complained has not free movement ais fundamental right gen- (7) to police; the in attendance an offi- “[sjtate erally,” although the has a school, cial religious, or other recreational great interest regulating the activities activity sponsored by the District of Co- of, protection for, and providing minors,” lumbia, a organization, civic or another this “interest does not automatically dilute similar entity that takes responsibility for the rights of [ constitutional ] minors.” Id. minor, the going from, or to or without Thus, at 671. minors who are not in the any stop, detour or activity such an super- custody of the a state have fundamental adults; (8) vised by or exercising First right to free movement. Since the curfew rights, Amendment including free exercise minors’ intrudes on right to free move- of religion, freedom of speech, and the ment, as well parents’ as on the fundamen- right If, of assembly. after questioning an tal to direct their up- children’s apparent offender to age determine his bringing, it subjected must be to strict being public reason for place, a a scrutiny. Accordingly, the police law must reasonably officer be believes that an narrowly promote to tailored the offense has District’s occurred under the curfew law compelling asserted interests in exists, protecting and that no defense the minor will the welfare of by reducing be minors by police detained the the like- and then re- lihood that perpetrate will custody leased into minors or be- par- minor’s ent, crime, come victims of guardian, or acting promoting an adult in loco parentis. parental If responsibility by no one assisting parents claims responsibility minor, exercising for the supervision the minor reasonable may be taken of mi- either to his residence nors placed entrusted to their care. into the The district custody Family court found that pro- the statistical Services Adminis- data tration until a.m. 6:00 the following morn- duced the District did not meet that ing. Minors found test. The court violation of the cur- also thought that four of may few perform be ordered to up to 25 the curfew’s defenses —the First Amend- community hours of defense, service defense, for each viola- ment emergency tion, parents while violating responsible defense, entity and the side- up be fined to or required to $500 “woefully walk vague” defense —were sweeping It is scrutiny. assertion. true that did not constitutional withstand Amendment Appellees’ First and Fourth to travel is right interstate well-estab —Roe, U.S. -, claims were reached. v. lished. See Saenz 1518, 143 Shapiro Thompson, 394 U.S. 629- v. II. 31, 89 22 L.Ed.2d 600 A. Although precise right source obscure, Shapiro, remains somewhat (and contend the district Appellees n. at 629 determined) in the curfew court dis origins reflect concern over state fringes on substantive than against crimination outsiders rather to right—the right free movement—and general ability to move concerns over right away be taken a substantive it cannot — Roe, -, about. See Saenz merely process.”1 course through “due Of (ground right is a synonym to free movement ing component right least one liberty; put jail one right when Privileges travel in and Im interstate move right is obvious one’s free munities Fourteenth Amend Clause curtailed, ment but that consti has been ment); Guest, United States person tutionally permissible if the whose 1170, 16 L.Ed.2d liberty has been curtailed is afforded due any impinge (describing process. government But interstate on a ment substantive fundamental as originating travel in the Articles of Con free un movement would measured con being “necessary federation and as der a and would scrutiny strict standard comitant of the Union stronger the Consti justified only infringement if the created”); Williams, tution Zobel v. 457 narrowly compelling tailored a to serve 55, 79-81, 2309, 102 U.S. S.Ct. Flores, state interest. Reno v. 507 (1982) (O’Connor, J., in concurring 672 the 292, 301-02, 1439, U.S. 113 S.Ct. 123 judgment) right origi (describing the as (1993) 1 (citing L.Ed.2d Collins v. Harker nating Privileges in the and Immunities 1061, 115, 125, Heights, 112 503 U.S. S.Ct. IV); California, Clause of Art. Edwards v. (1992)). 117 But L.Ed.2d 261 does such a 160, 173-74, 164, 314 U.S. 62 S.Ct. 86 right substantive exist? (1941) (describing right L.Ed. 119 as the Clause); being grounded the Commerce

Although appellees cite numerous cases Zobel, 6, 102 457 U.S. 60 n. S.Ct. 2309 support proposition that “the right the travel a right (describing to as the to cases as free movement is old as Republic,” support particular application equal protection the do not such a cases 1110, (1942) Appellees argued (holding that curfew vio- S.Ct. L.Ed. that below the 86 1655 process equal lated due both substantive and requiring a law the sterilization of certain protection rights. equal protection claim equal protection violated criminals because premise on the that District’s based the marriage procreation are fundamental "equal curfew law failed the to accord same rights, by ordering sterilization protection of the to as those laws” minors to others, some criminals but not the state "has appellees Although 17 and over. do not and made an as if it as invidious discrimination class, see, suspect age cannot claim that is a particular nationality had selected a race or 452, 470, e.g., Gregory Ashcroft, v. 501 U.S. treatment”). oppressive rehearing On en 2395, (1991), they 111 S.Ct. 115 L.Ed.2d 410 banc, appellees take have their we to renewed equal protec- contend that curfew violates process Fifth Amendment substantive due as tion because classification between these equal protec- well as Fifth their Amendment age groups juveniles' two funda- burdens the Appellees tion claims. have couched their deprive only rights—it to those mental serves question claim in terms of the threshold that right under 17 of their fundamental to "free Hutchins, must be due addressed both substantive F.Supp. movement.” See 942 670; process equal inquiries—is protection ex see also Skinner v. State Oklahoma 535, Williamson, 541-42, right rel. 316 U.S. 62 there fundamental at issue?

537 analysis); 630, 306-07, 394 U.S. at Shapiro, 2766, 89 101 S.Ct. 69 L.Ed.2d 640 (1981) (describing right S.Ct. 1322 deriving as (upholding constitutionality regu- principles federalism, general from lation since authorizing the revocation pass- right to travel from on port ground state to state regulation “ ‘occupies position fundamental to the authorized only revocation where the hold- ” concept of our Federal er’s activities in (quoting foreign Union’ countries are caus- Guest, 1170)). 757-58, ing or likely 383 U.S. at to cause S.Ct. serious damage security). to national Since right The Court suggested has on occasion free movement would cover both interstate some generalized more to move- right travel, and international Agee at least im- See, Dulles, ment may e.g., exist. v. Kent plies the right recognized by the 1113, 357 U.S. L.Ed.2d Court is decidedly more narrow. (1958) (“Freedom of movement is ba- Nor do the vagrancy cases relied values.”); on Guest, sic our scheme of appellees support their claim. While Jus- U.S. 86 S.Ct. 1170 (proclaiming Douglas tice noted in Papachristou City citizens of the United States “must have Jacksonville, pass repass through every (1972), that “wandering or country] part [the without interruption, strolling” place place was histori- freely as own (quoting [their] states” cally part life,” of the “amenities of id. at Nevada, (6 Wall.) 35, Crandall actually Court held (1867) 18 L.Ed. 745 (quoting The Pas- only that vagrancy law at issue was Cases, (7 How.) senger vagueness, void for see id. at (1849) C.J., L.Ed. 702 (Taney, dissent- 839; Lawson, also Kolender v. ing)))); Fears, Williams v. 352, 357-62, 45 L.Ed. 186 vagrancy While stat- (indicating locomotion,” the “right of utes certainly prohibit individuals from contract,” like “right is protected by about, moving the constitutional infirmity due process). substantive But those com- in these is not they statutes infringe ments are only dicta —the cases involved movement, free borders, travel across not mere “locomo- but that give fail to fair notice of Indeed, tion.”2 Supreme in Me- Court conduct that pose is forbidden and a dan- Hospital morial v. Maricopa County, 415 ger arbitrary of enforcement. In other U.S. words, they do not afford procedural due (1974), strong 306 cast doubt on the idea process. that there was right a fundamental to free movement, noting that “[e]ven a bona Supreme fide The Court in Maricopa Coun- requirement residence would ty burden the specifically to declined decide whether right to if travel travel merely right meant to recognized interstate travel event, any movement.” In Court Shapiro sub- has its analogue intrastate trav- sequently clear any made that right to split el. The are question. circuits on this travel involved in Kent and Aptheker was Compare King v. New Rochelle Mun. distinct from the recognized Auth., right (2d to inter- Hous. 647-48 travel, Cir.1971) explaining state international (holding municipal that a resolu- travel is no than an aspect more of liberty imposing five-year tion residency re- subject is government reasonable quirement public for housing admission to regulation within the pro- bounds of due right burdened fundamental to intrastate cess, whereas interstate travel is a funda- and stating travel that it would be “mean- right subject mental to a exacting ingless more to distinguish between interstate Haig Agee, travel) standard. See v. and intrastate” with v. Wardwell State, Aptheker Secretary (1964), 2. Kent and v. 378 could primarily even be viewed as of U.S. 12 First Amendment cases. 538 2333, 105 L.Ed.2d 110, 122, 109 S.Ct. City Dist. U.S. City School

Board of of of Educ. Moore, (6th 431 (quoting (plurality) Cincinnati, 627-28 91 F.2d 529 of 1932). Cir.1976) right at a fundamental U.S. (rejecting travel) analysis our us that to interstate has warned opposed as Court intrastate Jackson, F.2d of description City a careful begin v. must with Wright of (same). Cir.1975) (5th More general right 902-03 more the asserted hand, circuit ie., at one the case free move description, pertinent right’s (al traffic restrictions recognized the extension people, has the easier is of ment sustained) at easily they have been v. though Reno process. See due of substantive of free right a substantive implicate 1439; least Flores, at York, City Lutz v. See movement. H., n. at 127 also Michael Cir.1990) (3d (holding that 255, 268 F.2d generality (proper level S.Ct. which con outlawing “cruising,” ordinance “the most right which describe loop repeatedly around driving sisted of tradition at which a relevant level specific due roads, implicated substantive public to, protection denying or protecting, freely about one’s “move right to process identified”) (opinion right can be asserted town,” or upholding or but neighborhood C.J.). Scalia, J., Rehnquist, joined by scrutiny test under intermediate dinance judicial self-restraint “doctrine And the time, First Amendment derived from utmost care us to exercise the requires doctrine); see also and manner place, asked to break new whenever we Louis, F.Supp. St. City v. Townes Flores, field.” Reno ground (E.D.Mo.1996) (assuming heightened 302, 113 (quoting Collins claimed when resident scrutiny applied 115, 125, 112 Heights, 503 v. Marker pots flower placement large city’s (1992)). For 1061, 117 L.Ed.2d 261 infringed to her block across the entrance ask not whether reason we must travel right to localized her fundamental enjoy general right free Americans would survive the ordinance holding movement, are the but rather whatever scrutiny), aff'd, F.3d intermediate (if of such scope and dimensions Cir.1997). (8th re argue that Appellees exists), a substantive minors have such do kind, traf ordinary even strictions of freely have the right? Do free this substantive impinge on lights, fic night? wander streets —even doubtful are rather right. We movement right, as the asserted (defining id. those consti process, due that substantive restraint, but physical freedom from no from basic rights that stem tutional who has no right of child alleged “the liberty “deeply rooted tions of ordered relative, legal parent, close available tradition,” Washington history and [our] government is and for whom the guardian, -, 702, 117 S.Ct. Glucksberg, 521 U.S. custody of placed to be in responsible, (1997) (quot 2258, 2268, 772 L.Ed.2d 138 rather private custodian willing and able Cleveland, 431 East City v. ing Moore of govern government-operated than a 1932, 52 L.Ed.2d institution”). child care ment-selected (1977)), extended. lightly can be so hand, recognize that a we the other On not have a juveniles do We think on the municipal restriction hypothetical the streets at right to be on fundamental citizens, example, a of its movement The Su- supervision. adult night without curfew, play might bring into draconian rejected the idea already has preme Court process. due concept of substantive go right have a “come juveniles adults, unlike “juveniles, at will” because important an may, it there is Be that as custody,” id. some form always are in of considering in mind when caveat to bear Martin, 253, 467 U.S. v. (quoting Schall due of substantive extensions potential (1984)), 2403, 265, been a treach- “has at process, which times D., why the asserted see no reason field,” 491 and we H. v. Gerald erous Michael right any here would fare better. That it legitimate, served a nonpunitive rights juveniles of are necessarily Prince, not purpose); regulatory 321 U.S. at 169-70, coextensive with those of adults is undis 64 S.Ct. 438 (upholding prohib- law “unemancipated puted, lack iting minors children from selling magazines on street, of the most some fundamental even when accompanied by par- including even the guardian, ent or against claim that the law self-determination — sense, i.e., right liberty its narrow violated child’s freedom of religion); Gins- right go to come and York, will.” Vernonia berg 629, v. 637-643, New 390 U.S. Acton, Sch. Dist. (1968) 115 88 S.Ct. 47J (up- holding While on rational basis review ban on appellees claim that this reasoning ob sale of material to minors that would not parental scures difference between adults). be considered “obscene” for custody governmental custody, appel- Neither does the asserted right here necessarily lees juveniles concede that have deep roots in our “history and tradi always in some form custody. Not only tion.” noted, juvenile As District cur it say juveniles anomalous to have a fews not eаrly were uncommon in our his to be when unsupervised they are Note, tory, see Ordinances and the Curfew always some custody, form of but Control Crime, Nocturnal Juvenile recognition fly of such a would in the (1958), U. Pa. L. Rev. 66-69 n.5 nor are face of the state’s powers well-established they now, uncommon see Living Debra parens patriae in preserving pro ston, Police Discretion and the Quality of moting the welfare of children. The Courts, in Public Places: Communi Life authority state’s children’s over activities ties, and the New Policing, 97 Colum. L. unquestionably broader than that over (1997) 555 & n.11 (discussing Rev. like actions of adults. See Prince v. Mas research demonstrating that the use of sachusetts, curfews to control delinquency and reduce 88 L.Ed. 645 (observing juvenile victimization major is the norm in power prohibit state’s preaching street cities) American (citing William Ruefle & accompanied “children not by an older Reynolds, Kenneth M. and Delin Curfews person hardly open seems question”). quency Cities, Major American And would be inconsistent find (1995)). Crime & Delinq. That here, fundamental right when the Court juvenile is, course, curfews are common has concluded state intrude conclusive determining whether upon the juveniles “freedom” of in vari comport process, with due histori ety similar circumstances without impli prevalence cal of such laws is “plainly id., cating rights, 321 U.S. worth considering” in determining whether “ 166-67, 168-69, 64 S.Ct. 438 com (citing practice ‘offends principle some pulsory school attendance and child labor justice deeply so rooted the traditions laws), and can do so in far more intrusive and conscience of our people as to be ” here, see, ways contemplated than is e.g., Schall, ranked as fundamental.’ Flores, 507 U.S. at 113 S.Ct. 1439 (quoting Snyder (upholding on rational basis review deten Massachusetts, deportable of juveniles tion for release 330, (1934)). sum, 78 L.Ed. 674 neither only generally parents, to their rela close history precedent nor supports the exis tives, Schall, or legal guardians); 467 U.S. tence of right juveniles a fundamental for at pre S.Ct. (upholding public to be in a place without super adult juvenile trial detention of delinquents hours, after vision during curfew and we decline finding a of ground “serious risk” on the recognize to one here.3 footnote, Appellees suggest 3. in a without ex- vive a equal rational basis of their review planation, that the protection curfew not even sur- claim. We need not consider cur- with us is cardinal “[i]t that the said Court

B. of nurture the custody, care and that the lack a themselves juveniles if Even parents, in whose first the reside child movement, appellees of right fundamental freedom include and function primary fundamental, a parents have that claim can state obligations thp' preparation to and direct process due substantive Prince, 321 supply nor hinder.” neither and upbringing children’s their control 166, Pierce and (citing at 64 S.Ct. cur abridged by the right is such a that added). the Although (emphasis Meyer) of age children under few. Whether could the state in Prince held that Court is night abroad free to be at 17 are to be magazines selling ban children parents matter for their a presumptively street, by parent a accompanied when even determine, parcel of part and as of religious nature despite the and (Appellees suggest upbringing. balancing it so did after publications, permitting child a concept extends parents’ rights. against the interest state’s street be on the four—to any age—even 165-70, 64 438. That at See id. parental This night.) of the the middle searching a more might suggest approach alone, argued, fundamental (This review. than rational basis inquiry the D.C. judge obliges us develop- prior to the doctrinal long was not be scrutiny. disagree, We heightened part that are now the formal tests ment of think that no such cause we and, process, due modern substantive dimension, rather any right exists therefore, speak not the Court did by the implicated it not we think because basis.) scrutiny or rational of strict terms curfew. that the state’s emphasized But the Court twenties, In the early of chil- the welfare guarding interest statute state held unconstitutional Court par- wishes of against the dren —even teaching subjects prohibited powerful to ward off particularly ent—was teaching of for- and the foreign languages public places” and the ... [of] the “evils to children before eign languages activi- from other arising harms “possible school), (even in see private eighth grade influences of subject to all the ties diverse Nebraska, 390, 43 S.Ct. v. Meyer 168, By 64 S.Ct. 438. Id. the street.” (1923), 625, a statute 67 L.Ed. be- distinguished reasoning, Court so 16 to attend children 8 to required life,” id. family “private realm tween school, Society Sis- see Pierce public those activities L.Ed. ters, apply- public places, subject to the evils could these Although cases very close to rational basis ing something percep- on the thought to rest Court’s be latter. restricting the for laws review had an irrational the statutes tion Yoder, also Wisconsin basis, Meyer, 262 U.S. applied statute (concluding that the unconstitution- (high attendance law school re- without reasonable “arbitrary and was parents’ rights to direct ally infringed on competency any end within lation and education of religious upbringing state”), observe in Pierce the Court did children; only interests their those creature the mere “[t]he child paren- can overcome those “highest order” state; nurture him and who those rights). tal coupled right, have the destiny his direct cases, then, that from these pre- glean We duty, recognize high with the thought can to have parent as a id. at insofar obligations,” pare him for additional state, Prince, against the right, as a fundamental And 1944 in See, e.g., Washington is rational. only under 17 arguments in a sory made footnote Barry, v. 107 Legal Clinic Homeless whether classifi- do address therefore for 32, (D.C.Cir.1997). F.3d 39 and over and those those 17 cation between

541 children, upbringing of his or her scrutiny of appropriate when evaluating parents’ on is focused con restrictions оn minors’ activities where parents’ trol of the home and the interest unique their vulnerability, immaturity, and wishes, in controlling, if he or she parental need for guidance warrant in- formal education children. It does not creased oversight. state See Carey v. parent’s extend to a to unilaterally Population International, Services 431 determine if when and children will be on 678, 15, U.S. 693 n. 2010, 97 S.Ct. 52 certainly night. That is (1977) L.Ed.2d 675 (plurality streets — opinion); not among the “intimate family decisions” 634, 443 U.S. at 99 S.Ct. 3035. Bellotti encompassed by a right. such v. reasoning Prince, The Schleifer and Car- Bellotti Charlottesville, City 159 F.3d 853 ey necessarily suggests that something — (4th Cir.1998), denied, U.S. -, cert. ‍​​​​​​‌​‌‌​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​​​​​​‌​​​‌‌​‌‌‌‌​‌‍less than strict scrutiny —intermediate (1999). scrutiny appropriate be here. Not —would only can juveniles thought to be more III. to harm vulnerable during curfew hours adults, than but are able less to make

A. mature decisions in the face of peer pres- Even if the implicated curfew sure, and are more in parental need of rights of children their or supervision during curfew hours. See parents, it would survive heightened scru Schleifer, 159 F.3d at (applying 847 inter- tiny. Assuming such rights implicat are scrutiny, mediate reasoning “qual- that the ed, whether, we must first decide as the ified rights” juveniles subject should be held, district court scrutiny strict applies to something more than rational basis and whether, or Judge Rogers concluded, as something less than strict scrutiny re- Columbia, see Hutchins v. District 144 view). Compare Nunez v. City San (D.C.Cir.1998), F.3d 809 vacated (9th Diego, Cir.1997) 946 reh’g en banc granted, 156 1267 F.3d (rejecting degree lesser scrutiny for (D.C.Cir.1998), scrutiny intermediate equal protection challenge juvenile cur- called for. We think the latter. Consid few noting scrutiny strict in the first, ering rights children’s we agree that context “may of minors greater allow bur- constitutional rights do not instantaneous dens on minors than permissible would be ly appear only juveniles when reach the adults”). age majority. See Planned Parenthood 52, 74, v. Danforth, (1976). To withstand scruti Still,

49 L.Ed.2d intermediate 788 children’s ny, the curfew must be “substantially are not re coextensive with those of (rather tailored) Prince, lated” narrowly adults. than U.S. at 438; (rather Baird, “important” achievement of Bellotti also 622, 633-39, than compelling) government U.S. interests.4 Boren, See Craig (plurality opinion). So “although generally protected children are see also by the same guarantees University ... Mississippi constitutional v. Ho Women for adults, as gan, the State is entitled to ad just system legal to account chil L.Ed.2d gov asserted dren’s vulnerability” by exercising broader ernment protect interest here is to authority Bellotti, over their activities. welfare by reducing of minors the likeli 99 S.Ct. 3035. This hood that minors will perpetrate be means, minimum, that a lesser degree come by promoting victims of crime and Although appellees challenge {i.e., height- claim the standard of review juveniles' pro- violation of substantive scrutiny) due ened applied any should be differ- equal protection rights, they cess and ently do not for one or the other. interest, in- three we see government’s pre- The District responsibility. parental premises factual сoncepts: the the terrelated depicting evidence reams of sented its deci- legislature based which the upon and juvenile crime impact of devastating has remedy the sion, logical the connection juvenile District —the in the

victimization scope of the the premises, and those juveniles ages rate for crime arrest violent employed. remedy any that in state higher than 17 was 10 to the nation- three times more was than and the case criticize in this plaintiffs see Kids Count average, al Book: Data on all three legislative decision District’s (An- Well-Being op Thus, argue: appellees Child PROFILES grounds. State Md.) Baltimore, Foundation, Casey E. nie ev- relied on statistical improperly District violent highest had the District showing the effec- from other cities idence 19, which 15 to ages teens rate for reducing death in laws curfew of similar tiveness and average, the national four times was victimization because crime and juvenile last, almost dead was ranked compa- District sufficiently are not cities the other state, in than the worst rable; times worse the effective- testimony three as to This well-being. id. overall District children’s itself the curfew in ness of confronting months) abysmal situation unreli- three was was the first (during adopt the curfew juvenile when voted arrest able; District the District’s wor- (the the situation showed factual law. Statistics most statistics curfew) a sening. See Office need for were premise for the Coun- of CORPORATION Report olds year included flawed because Statistical Juvenile Section sel By Priority curfew; Years 1987- that the Dis- Charge, by the not covered Fiscal juve- increase (showing adequately estab- dramatic did statistics not trict’s alia, for, as- aggravated arrests inter problem nile the District’s centered lish that murder, sault, carrying dangerous during and crime and victimization juvenile juvenile picture hours; Given this that the District did weapon). and curfew victimization, be no there can showing and that crimes commit- crime data produce welfare dispute protecting juveniles occurred against serious ted juvenile crime by reducing i.e., home where minors of the “public,” outside important government during is an be juveniles presumably victimization will Broadcasting Sys- interest. See Turner hours. tem, FCC, Inc. course, considering the Dis Of (1994) (gov- decision, we must bear trict Council’s assert- must demonstrate ernment reviewing are not district mind that we merely and not con- interests real ed of historical agency’s findings court’s or an

jectural). a more structured kind fact which judgment. And legislative decision than curfew is “substantial Whether agency review of in in the context of even achievement of ly related” to the great obliged give rulemaking, we are here. question is the more difficult terest judgments based on leeway predictive lower Supreme Court nor the Neither ex sphere of agency’s within the expounded upon matter courts has federal —ex Radio, Inc. Fresno Mobile phrase pertise. See terms —the doctrinal plained (D.C.Cir.1999). FCC, To relationship.” That test obvi “substantial sure, intermedi applying in two cases inquiry searching for a more ously calls quasi-suspect (the in the context of scrutiny minimum ate standard than rational basis classes, closely claims), Court yet a protection judging equal sci statistical social skeptically examined scrutiny’s one than strict deferential more justify differential purporting to judging ence data tailoring component. narrow Craig, men and women. See treatment of relationship between closeness 451; (the Hogan, curfew), means chosen magnitude juvenile 102 S.Ct. 3331. But crime—at least as key understanding we think the juveniles. District has defined But the analysis Court’s close in those brought District to our attention more qases Craig is the Court’s observation in showing data youths arrests for under proving proposi- “that broad sociological 17 have been increasing steadily. business, by tions a statistics is dubious event, In any the District is obliged and one that inevitably is in tension with prove precise fit between the nature philosophy the normative that underlies problem and the legislative reme- Equal Protection Craig, Clause.” dy-just a substantial relation. The Dis- U.S. at by S.Ct. 451. We think trict can hardly be faulted for determining implied particular- the Court that it is not to year curfew; include 17 olds ly troubling legislation provides when obviously that would be more intrusive (or differential treatment suspect between create more of an problem. enforcement quasi-suspect) classes and others. There And even if minors under 17 are likely less really dispute comparable is no this case olds, to commit year crimes than 17 com- hotly contested and ques- sensitive mon sense tells younger us that children tion as to the differences between men and surely will be more vulnerable. women. dispute Plaintiffs do not that the difference between adults and gen- minors Appellees also claim that the District’s justifies erally government’s differential data is flawed because failed to establish minors; they dispute treatment of only problem that the District had a juve- with particular differential treatment be- nile crime and victimization during curfew cause of its interference with their “funda- hours. The presented material to the mental” to free movement. point Council on this consisted aof chart prepared mind, then, by Metropolitan Police De-

Bearing that we are re- partment decision, juvenile which showed viewing legislative that most we turn to appellees’ place during arrests took specific objections curfew hours. to the Dis- court, Echoing the appellees trict’s district decisionmaking. Taking argue first diagnosis situation, deficient,” District’s this evidence “woefully of its own we Hutchins, ask whether it impermissible F.Supp. was for the because the data, rely Council to source arrest statistics that from which the chart was included 17 year compiled, appears olds and victimization sta- to conflict with the tistics that covered 15 to year olds. chart. While the data admittedly less Appellees clear, claim that including year crystal any than discrepancies ap- necessarily olds’ arrests will pear overstate the to be minor.5 The bottom line is that request 2,292 during 5. At the year yields of the D.C. Council a total of rather than law, 2,312 listed, consideration of the curfew the Metro- year and the fiscal politan Department compiled (The Police statistics totals should be 862 rather than 581. juvenile juvenile on total arrests and arrests year numbers for fiscal 1993 were added cor- during proposed rectly.) curfew hours between These mathematical errors resulted 3,722 January February 1993 and listing 1995. This infor- juvenile a total of arrests dur- mation—the source ing 3,694 data —was later summa- curfew hours when the correct number is rized in a chart and included in the D.C. discrepancy minor which does not —a report Council committee on the curfew law. affect the bottom line conclusion. There is discrepancies There are in this information also some confusion over the number of total which has caused some confusion. The Appellees arrests for all hours. note that add- source data juvenile ing up consists of statistics for the total arrests for all hours in the offense, during 2,400 by arrests curfew appears yield hours source data some more juvenile total number of during juvenile arrests arrests than number listed as the offense), (adding up hours the arrests "total” in the chart. The source data for 1993, however, juvenile the total number of arrests for all fiscal included total arrests juvenile hours. The total number of year arrests for the fiscal entire for 1993 but included during curfew hours during only contains errors of addi- portion arrests curfew hours for adding tion: year arrests offense for January fiscal of the fiscal 1993. The —from methodology. on scientific obliged more to insist indicate District’s statistics Theatres, Playtime place City Renton arrests took juvenile than 50% Circuit, 41, 51-52, Inc., The Fifth curfew hours. during curfew, in- con- that under (holding an identical evaluating almost pass even Amend- scrutiny would in the First that the curfew cluded termediate “the notwithstanding context, that scrutiny, may rely on evidence city strict a ment data provide precise to city was unable as what- long cities “so by other generated juveniles who number of concerning the rea- upon is city relies ever evidence hours, or the curfew during crimes commit relevant to to be believed sonably com- of crimes juvenile victims number of addresses”); see also city that the problem Qutb v. the curfew.” during mitted at Craig, 429 U.S. Cir.1993). (5th Strauss, had relied on statistical that state (noting murder, rape, such as That serious crimes and, al- jurisdictions other from evidence assault, committed aggravated many proof on though criticizing state’s likely to ages, were more groups all evidence of of such grounds, disapproving not to hours was sufficient during curfew occur se). in Fourth Circuit per Schleifer curfew “fit” between the demonstrate a Charlottesville, adopting in its that noted inter- compelling state ordinance and curfew, had relied on a show- juvenilе own Similarly, that District id. est. See Kentucky had a suc- Lexington, ing that juve- showing produce data where did not Although the juvenile curfew. cessful (ie., occurred nile crime and victimization there was tes- that recognized court there primarily it outside occurred more effective that curfews be timony home) That substan- problematic. not is Lexing- (suggesting cities in smaller juvenile victim- percentage of violent tial may have similar ton and Charlottesville 33%) on (approximately occurred izations emphasized the court also experiences), supports the rela- adequately the streets potential effi- judgment about that the interest tionship government’s between debate, not political curfew “is a cacy of a the curfew. imposition and the Schleifer, 159 F.3d judicial á one.” Nevertheless, appellees argue event, own the District had its any curfew obliged to confíne the District was was effective indications that the curfew flatly city. We high-crime to areas Deputy the District Columbia-—the have have done so would disagree. To Depart- Metropolitan Police Chief of the charges of racial opened the Council the D.C. Council testified before ment Indeed, it would have discrimination. had the curfew in its first three months that decision faced attacks on similar the streets juveniles in fewer on resulted sociological the “broad those directed to hours, a “reduction curfew and thus during disap- Supreme Court propositions” the ar- juvenile night late of the number Craig. proved of rests,” decrease arrests noting 34% Appellees old. juveniles years under 17 was Appellees’ claim District testimony the relevance question rely experiences on curfew not entitled did not demonstrate because the District particularly strikes us as in other cities at- juvenile arrests was drop that this compa- city exactly no is weak. Of course opposed as to the curfew other, tributable folly for any but it would rable to objec- think that factor. We some other experiences of other any city not to look preciseness leg- for an absurd tion calls drawing cities. And in conclusions which would make decisionmaking legislatures are not islative experiences, those January during hours from curfew appears to correct nile arrests least summarized chart revealing through February making it is for this notes that difference during juvenile occurred comparison- arrests apples-to-apples includes most an —-it juve- hours. comparison juvenile curfew of total arrests city adopt virtually impossible any not consider that theoretical impingement any parental curfew. authority worth mentioning; it saw the statute essentially supporting Finally, that the eight we note defenses parental authority. dynamic The same strengthen relationship to the curfew true here. The curfew’s defenses allow between the curfew and of reduc- goal parents almost total discretion over juvenile crime and victimization ing their children’s during activities narrowing scope of the curfew.6 That hours. There are no restrictions whatso- (the is, constitutionality the defenses juvenile’s juvenile ever on a activities if the below) up help which we take ensure that accompanied by parent, guardian, or sweep ordinance all a mi- does an adult over the 21 age by of authorized nor’s activities into its ambit but instead parent supervise juvenile. to See focuses on those nocturnal activities most 6-2183(b)(l)(A); § § D.C. Code id. at 6- likely to result in crime or victimization. 2182(8). Parents can allow their children B. errands, run gives parents to which great flexibility in exercising their authori- Assuming, as we do in this section view, ty. Contrary appellees’ to we do not opinion, that the fundamental rights see how preclude parents the curfew would curfews,7 parents implicated by we allowing their children to walk the passes also conclude this curfew inter or dog go § to the store. Id. at 6- scrutiny mediate carefully because it is 2183(b)(1)(B). any Juveniles attend fashioned much parental more to enhance school, “official religious, or other recre- authority challenge par than If to it. ational activity sponsored by the District ents’ interests were in conflict with the Columbia, organization, a civic anoth- interests, state’s we would be faced with a entity er similar responsibility takes balancing sharply compet more difficult for the minor” as well as to travel to and Bellotti, ing generally claims. See § from such activities. Id. 6- n. 637-39 & 99 S.Ct. 3035 2183(b)(1)(G). Although the extent (noting rights that limitations on children’s organization” which this “civic defense justified by attempt can be state’s Kennedy would cover events at the Cen- Thus, support parental authority). ter, Smithsonian, lectures at the church Ginsberg, Court observed activities, events, early group athletic selling that a ban on mi magazines to practice, morning sports high school band magazines judged that would not be nors— like, practice, and the can wait for the test constitutionally obscene if sold to adults— raising questions, of concrete cases those substantially parental did not conflict with certainly gives parents good the defense authority parent always because a could deal of discretion over their children’s ac- buy magazines those sorts of for their Together pro- tivities. with the defenses children. Ginsberg, See 390 U.S. at employment emergencies, It vided for 88 S.Ct. 1274. could be said that case 6-2183(b)(l)(D)-(E), §§ parents that the see id. at ban nevertheless interfered with a parent’s ample authority parental desire to allow his or her children retain to exercise independence purchase magazines with control. the curfew ac- generously Since parental supervision, out parental rights, preserving but the Court did commodates sure, defenses, purposes 6. To be to the extent we For of Part III.B do not as- provide juveniles during to be out curfew parental rights, a narrow sume definition of hours, necеssarily will not themselves re- limited to activities within the home or class- room, juvenile sult in reduced victimization. But substantially rather assume a relationship the substantial test does not de- broader formulation. every aspect mand that the curfew law government advance the asserted interests equally. satisfy sufficiently definite provision is upbring to direct discretion parental long as a so process requirements children, due does not unconsti of their ing have intelligence would ordinary person rights. See infringe on such tutionally to know what opportunity a reasonable (concluding Schleifer, 159 F.3d City Grayned v. Rock prohibited. im were not parents’ ford, 408 U.S. curfew, stating that then plicated (1972); Connally v. General L.Ed.2d accommo would exceptions Co., Qutb, 11 F.3d Constr. parents); rights of date “the That fertile L.Ed. 322 (same); Borough Bykofsky at 496 conjure up hypothet can legal ‘imagination Middletown, F.Supp. ” dis meaning’ of cases in which the (M.D.Pa.1975) (same), 1245 ical aff'd, 535 F.2d questioned denied, terms could be does (3d puted Cir.), cert. unconstitutionally provision render compare Reno, 1412, 1421 101 F.3d vague. Terry down Nunez, (striking at 946 (D.C.Cir.1996) Grayned, 408 U.S. (quoting parental rights based curfew as violation (quoting at 110 n. Ameri limited ordinance and sweep of on broad Douds, Ass’n v. can applicable Communications think under exceptions). We 94 L.Ed. rather U.S. facilitates precedent the curfew (1950))). parental authority. usurps than claim that the First Appellees

IV. impermissibly is Amendment defense9 to be juveniles would need vague because remaining attacks on Appellees’ ac to know what that “constitutional scholars” away. They fall contend curfew police offi and that correctly that tivities were forbidden concluded district court in the intricacies of cers untrained curfew’s First of the defenses—the four will, unguided defense, their responsi First Amendment activity Amendment discretion, defense, curfew unconstitu defense, enforce the sidewalk entity ble simply But defense ensures “woefully tionally. emergency defense—are applied to undefined,” the curfew will not be that these de that vague vague more protected expression; is no withstand constitu therefore do not fenses Hutchins, As the than the First Amendment itself. F.Supp. scrutiny. tional nearly upholding Fourth Circuit noted appellees contend Insofar exception against vagueness articu identical imprecision much is too there defenses, perfectly it is clear some they really challenge, are of these lation activities, worship and religious parental such as undermining their claim un protected would be very political protests, impinged upon. For the activities, defense, and that other der flexibility that the administration not. See rollerblading, would contemplates parental enhances such as may event, at 854. That Schleifer, 159 F.3d there any In as the District control.8 poles two noted, marginal between these require does not cases the Constitution arise, but such statutory clarity.” can be addressed as feаts of “unattainable Maude, for provision void F.2d cases do not render States United (D.C.Cir.1973). Rather, statutory vagueness.10 really speech, and the of assem- suggest appellees freedom of bly.” may well 8. Thai object any curfew. sort of out, ordinarily points it is 10.As the District 2183(b)(1)(H)provides a defense 9. Section 6— interpre- provide definitive local courts for "[e]xercising First Amendment a minor is if Grayned, tations of state laws. rights protected by the United States Consti- purport We do not 92 S.Ct. 2294. tution, religion, including free exercise interpretation of law provide an D.C. such defense,11 responsible entity ment is also without merit. The defense according appellees, impermissi- to the is provides parameters clear as to what con- bly vague it does not because define the prohibited. irrelevant, duct is It organization, “a civic term another simi purposes of evaluating vagueness, that a lar entity responsibility that takes for the neighbor has the “discretion” to call the organization” minor.” While “civic and police juvenile aif remains neigh- on the “entity responsibility takes for the bor’s during sidewalk curfew hours —the terms, admittedly imprecise minor” are discretion exercised in this situation is any ambiguity is not of constitutional mag analogous to that exercised property out, points nitude. As the District trespass owners under laws. applies defense its own terms to activi Appellees also challenge schools, sponsored by religious ties organi defense,13 “emergency” despite the de zations, or the District of Columbia. tailed definition emergency provided context, this organi the addition of “civic the statute. It argued that “emergen zation, or entity” simply another similar cy” is unconstitutionally vague because it general includes within the defense the is unclear whether the need to walk the organizations class of be thought dog or go buy typing paper night schools, analogous religious organiza assignment before a homework tions, is due con or governmental Compare entities. an Oradell, emergency stitutes under the curfew Hynes Mayor Again, argument law. borders on the (finding vague “speculative the term “civic” frivolous. Mere musings” when strik ing possible down that required permits ordinances about the meaning a term do for door-to-door solicitation but that ex not render it unconstitutionally vague; empted organizations) Schleifer, civic with do so would make the drafting of laws an (noting Hynes 159 F.3d at 854 that does impossible Schleifer, task. 159 F.3d at not stand proposition for the broad per vague, noting “civic” is se that the Appellees argued before the district ordinary meaning of the term as used court that the curfew also violated their vague). curfew law was not First and Fourth rights, Amendment

Appellees contend that because the district court the side found the curfew walk unconstitutionally defense12 is unconstitutional vague equal protection on because it “improperly delegates process grounds, standard- due it did not reаch these less discretion neighbors.” argu- This additional constitutional claims. We exer- here; merely we challenged complain Metropolitan conclude that the not to the Police De-

provisions facially vague. are not partment presence.” about the minor’s 2183(b)(1)(G)provides 11. Section a defense 6— 6-2183(b)(l)(E) provides 13.Section a defense if a minor is attendance at an "[i]n official if emergency.” a minor is in an "[i]nvolved school, religious, activity or other recreational "Emergency” is defined as "an unforeseen Columbia, sponsored by the District of a civic resulting combination of circumstances or the organization, entity or another similar state that calls for immediate action. The minor, to, responsibility going takes for the or includes, ‘emergency’ term to, but is not limited from, returning any or home without detour fire, disaster, a natural an automobile acci- school, stop, religious, or an official or other dent, any requires or situation that immediate activity supervised by recreational adults and prevent bodily injury action to serious or loss Columbia, sponsored by the District of a civic (2). § bodily of life.” 2d. at 6-2182 "Serious organization, entity or another similar injury” "bodily injury is defined as that cre- responsibility takes for the minor.” ates a risk of death or that substantial causes death, 6-2183(b)(1)(F) permanent disfigurement, serious or provides 12. Section a defense protracted impairment if a loss or of the function minor is the sidewalk that ”[o]n abuts the any bodily organ.” § minor's member Id. 6- residence or abuts the residence or (11). neighbor neighbor of a next-door if the did But in the first instance. ment activities purely these to resolve our discretion cise provided convincing appellees have not judicial econ in the interest legal claims why might Feder be so. argument 100 on the as to omy. Committee See Hodel, 718-19 First Amendment defense City v. that the al Given (D.C.Cir.1985). any provides protection, full by definition by the curfew deterrent caused residual poten “possesses curfew The an incidental burden pose would at most rights,” suppress First Amendment tial to expressive activity or juveniles’ is appellees, and this defect according to of association. First by the curfew’s defense for not cured argument activities. This Amendment that the appellees argue Finally, hold a because we cannot self-defeating be the Fourth Amendment curfew violates (appellees’ facially unconstitutional statute an police officer to arrest cause allows one) on a mere is a facial based challenge probable without cause. individual might the statute be uncon possibility that police provides officer particular applications. stitutional the officer make an arrest “unless Angeles Taxpayers City Council Los that an offense has reasonably believes Vincent, 789, 797, 104 2183(c)(1). This formula occurred.”! 6— (1984).14 any 80 L.Ed.2d however, tion, precisely how Su event, regulate itself the curfew does not causе, preme probable defined Court has expression, and thus would proscribe or California, see Ker v. subject scrutiny under the First only be (1963), and the regulated Amendment if it “conduct require conforms to the curfew therefore element,” if it “im expressive an has ments of the Fourth Amendment. upon burden pose[d] disproportionate Amend engaged protected those First Books, activity.”

ment Arcara v. Cloud reasons, that the For these we conclude Inc., Accordingly, curfew law is constitutional. regu The curfew grant we reverse the district court’s activity juveniles during night lates the appellees summary judgment favor of terms, hours; not, time it does enter and remand for the district court to regulate expressive Spence conduct. See the District of Co- summary judgment for 405, 410-11, Washington, 418 U.S. lumbia. (1974) (to 2727, 41 L.Ed.2d 842 So ordered. expressive, convey to conduct must intend and the likelihood of particular message, EDWARDS, Judge, HARRY T. Chief message being that understood others part concurring in in the concurring and curfew, Nor can the on its great). must be result, Judges with WALD whom Circuit face, disproportionately be said to burden join in Part II: and GARLAND expressive in conduct—the engaged those view, my disputed In curfew law provides curfew covers all activities implicates significant rights of both minors specific juveniles engaged defense for and, subject to Appellees parents accordingly, is First Amendment activities. however, than “intermediate scruti- no less so-called suggest, curfew—even join I do not Part II of the ny.” with the deter therefore significantly defense—will court, opinion for the which rests on juveniles engaging in First Amend- challenge the statute appellees' applications duct to 14. We do not understand reference against parties the court. See asser- third not before to the statute’s "overbreadth'' to be an Arcades, Inc., Spokane challenge Brockett v. tion of a facial under the First 491, 503-04, Amendment overbreadth doctrine —which EPA, (1985); (not Sanjour v. applicable 92 n. 10 really here) standing exception (1995). parties engaged unprotected for con- parental the curfew law does not fines what proposition rights fundamental are rights explication fundamental of minors at issue here. Some implicate the is neces- However, parents.1 generally sary, for I think. or them cited in Part III.A of the the reasons Certainly it parents’ should be clear that I law in- opinion, agree survives rights cannot be limited only those ac- respect scrutiny termediate with tivities that are within the home or involve that, I agree of minors. also rights the formal education of one’s child—such a analysis, final the law survives intermedi- formulation is much too narrow. I do scrutiny respect parents’ rights ate with agree suggestion with the in Part II.B of I, I Accordingly, well. concur in Parts opinion for the parents’ court IV, III.A, I concur in the result rights solely are limited family “intimate join reached in Part III.B. I do not decisions,” unless “intimate” is meant to III.B, I analysis underlying Part because just include more than goes what on within very premise. start from a different the confines of the home regard and with view, my parental rights implicated are in to the child’s education. As numerous Su- truly significant— this case and clear, preme par- Court decisions make indeed, rights these are at the core of our ent’s stake in rearing of his or her society’s moral and constitutional I fiber. surely beyond child extends the front door difficulty have more than a in finding little family beyond residence and even passes that the curfew law constitutional the school classroom. against parents. muster as the claim of fifty Over years ago, Court broadly stated that is cardinal with us “[i]t I. custody, care and nurture of the opinion Part II of the for the court parents, child reside first in the whose suggests rights the fundamental ac- primary function and freedom include parents par- corded to are limited to “the preparation obligations the state can parents’ ents’ control of the home and supply neither nor hinder.” Prince v. wishes, if controlling, interest he or she Massachusetts, the formal education of children.” This 88 L.Ed. 645 accord Reno v. opinion section of the that this concludes ACLU, n. parent’s not extend “does to a 2329, 138 L.Ed.2d 874 More re- unilaterally determine when and if chil- cently, recognized the Court has that the certainly dren will be on the streets — parental right to raise children the man- night.” goes It on to hold that the curfew parents deeply ner that the see fit en- implicate any law does not trenched: parents, because limitations on history and The culture of Western civi- may night where one’s child be at “not strong pa- lization reflect a tradition of among family the ‘intimate decisions’ en- up- rental concern for the nurture and III, compassed by right.” such a In Part their children. bringing primary of This holds, that, opinion alternatively, the “even in parents upbringing role of the the of implicated if the curfew fundamental beyond their children is now established rights parents,” ... of the curfew law sur- enduring debate an as American tradi- scrutiny. opinion vives intermediate The tion. acknowledges in a footnote that “a sub- Yoder, 205, 232, stantially parental broader formulation” of Wisconsin v. than that in Part II.B rights discussed is S.Ct. see also Illinois, purposes assumed for the of Part III.B. Stanley v. (1972) (“It

However, opinion specifically the never de- S.Ct. is majority respect portion opinion 1. A the in the of court has not concurred to that for II, my Part so I see no need to air dissent with court. in their parents’ authority in claim to parent interest of a the that the plain that the rearing the of care, household to direct custody, manage- and own companionship, in of their children is basic the structure this ‘come[s] or her children to ment of his reasonably no one could be- society,” our respect lack- with a momentum for Court parents’ limit that the Court meant to lieve made to liberties which appeal when is ing takes authority only child-rearing to shifting economic ar- merely derive ” physical the confines рlace literally within Cooper, (quoting Kovacs rangements.’ Such a view of “their own household.” 93 L.Ed. 513 U.S. surprise to stunning would come as a (1949) (Frankfurter, J., concurring))); parents throughout history our countless Sisters, Society Pierce v. of on their imposed who have restrictions 571, 69 L.Ed. 1070 habits, driving, movie se- dating children’s requiring state law children (striking down visit, lections, part-time jobs, places to public “interfering] schools as to attend for, paid permitted, and who have parents guardians liberty with the of supported their children’s activities of upbringing direct the and education to sports camps, tutorial programs, summer control”). children under their selection, and scores of counseling, college sure, circumstances, there are as To be activities, arising such all outside of other below, under which the state’s I discuss family the residence and school classroom. trump par- the rights interests reality ignore ignore To however, Part II.B say, ents. To Supreme admonition Yoder Court’s suggests, that a opinion for court “primary parents role of the regulates and restricts curfew law upbringing of their children is now estab- during the home minors’ activities outside enduring debate as an beyond lished even nighttime impli- hours does not American tradition.” 406 U.S. at rights par- cate the broad disregard teachings ents is to of dec- that, in There is no doubt certain ades of Court case law. stances, may lawfully regulate the state Court has never limited its definition activity regard of children without only to include parental rights Indeed, parental preferences. Su supervise place activities that take lit- preme “the Court has noted that state has erally literally inside the home or inside range power limiting parental a wide Indeed, a limitation the classroom. such affecting authority things freedom and implausible. welfare,” Prince, child’s Surely implicates curfew law nighttime permitted paren and has “care,” parents’ rights to control the “nur- tal circumscribed to accommo ture,” “upbringing,” “management,” and legitimate interest date Government’s children, “rearing” their even if the “moral, emotional, mental, phys in the regulates activity minor,” Stanley, ical welfare law— definition — place the home and school. takes outside (internal quota The fact that some of the aforecited Su- omitted). However, tion marks when the inyolve parents’ rights Court cases preme rearing does intervene in the Government to control the education of their children is regard parents’ pref without children surprising, but neither is it evidence erences, not usually response “it is in to some imply parents meant to the Court family within the significant breakdown aspects rights have no to control other parental complete unit or in the absence of Thus, their lives. when the children’s caretaking,” Action Children’s Televi for York, (D.C.Cir. FCC, in explained Ginsberg Court New sion v. 1995) (Edwards, C.J., dissenting), or (1968), in- that “constitutional a norm that is critical to the enforce health, terpretation consistently recognized safety, or welfare of minors. The has then, by allowing private, a child to attend is how to accommo- dren question, difficult school, Pierce, parents’ public than see interests and rather both the state’s date specific no at allowing parents where there has been to teach their children rights words, an identified home, within finding long of a breakdown see Yoder. In other as indisputable met, is no family unit and there parents may standards are as certain health, safety, or welfare threat to the they educate their children as see fit. minors. require unreasonable to

It would be II. shoiving particularized to make a state opinion for the court acknowl- As the specific from a every child will benefit appeared in Prince edges, the Court mi- protect the welfare of law enacted to engage searching inquiry in a more than example, every not child will nors. For review, although mere rational basis from child precisely equal benefits gain case was decided before the Court had laws, but there is laws or education labor adopted scrutiny, of strict inter- labels reasonably may the state no doubt scrutiny, or rational basis to char- mediate education, Yoder, see regulate appropriate standard of re- acterize the may regulate and that it Prince, view. See 165-70 & Prince, labor, see prohibit and even child (balancing pa- nn. 64 S.Ct. 438 Rather, 321 U.S. at rental interest with the state interest signifi- that if there is a suggests case law sup- looking to child labor statistics important goal to be achieved cant view, port). my In Prince and other such health, safety, enhances the generally cases indicate that there must be a sub- minors, unemancipated or welfare of relationship objectives between the stantial to achieve that may pass legislation state parents’ rights that limits and the law not long legislation so as the does goal, protection children. a law must Such parents’ rights to raise unduly tread on parents’ reasonably also accommodate their children. they their children as rights to raise categories of There are three obvious fit. may pass legisla- the state cases which that, case, I no real doubt In this have children: protecting that is aimed at tion shows, the opinion for the court as (1) are not parents’ rights laws in which to the substantially curfew law is related accommodated, accommodating because dangers minors from the protection of would defeat the entire parents’ interests question difficult here juvenile crime. The e.g., preventing purpose legislation, law, seeking is whether the curfew custody of children parents retaining children, protect adequately accommodates (2) abused; par- they have laws which activities parents’ rights to determine what all, implicated e.g., ents’ are not upbring- children’s necessary are to their convicted sex offenders from preventing view, law growth. my In the D.C. ing hаve working places where would parents’ rights, accommodates adequately children; contact with substantial because, making although parents’ decision implicat- parents’ rights in which laws unfettered, parents law allows ed, but are accommodated. manage the discretion in how to great category, involves the third This case children. activities of their i.e., good example A accommodation. notes, First, opinion for the court category is found the “accommodation” 2183(b)(1)(A) travel § allows a minor to by now well- the area of education. It is 6— adult. parent with a or other compul- anywhere a state enact established that (B) however, addition, allows minors to subsection requirements; sory education I parents, and read run “errands” for their that the state must accom- equally is clear may any parent task a their chil- this to include parents’ rights modate to raise child, parents’ control over the activities of including walking family- tate assign a (“It milk, their children. See id. at 682 would be and dog, running to store for object regulation hard to some sort of elderly family member. checking on an (D) indecency in well as other Furthermore, mi- broadcast as allows a 'subsection narrowly it tailored to facili- work, media were and to travel to and from sub- nor parental supervision of children’s ex- (E) tate during allows a minor to be out section material.”). respon- posure to indecent No an curfew hours if necessitated emer- send a child (G) parent willingly sible would allows a gency. Finally, subsection A danger. designed into law to curb school, reli- any minor to attend “official possibility of while at the same danger; activity spon- gious, or other recreational parents time freedom to affording wide Columbia, by the District of a civic sored activities, direct their children’s is one that entity similar organization, or another passes Although constitutional muster. minor,” or responsibility takes for the parental implicated by been rights have school,. return “an travel to or official law, they imper- the curfew have been activity su- religious, or other recreational missibly infringed. pervised sponsored by the by adults and Columbia, a organization, District of civic I therefore concur in the conclusion that entity re- or another similar takes constitutional, only the curfew is be- sponsibility during for the minor” curfew cause I find that the curfew law is substan- exception hours. I read this to allow a tially protection related to the of children minor attend a at a local theater movie rights parents and that the have been Kennedy or musical concert at the Center. adequately accommodated. supervised, Theaters are adult because an GARLAND, premises Judges, in WALD and charge

adult must be of the Circuit concurring part in and in the open, patron concurring while it is remove a inappropriate. if his or her behavior result: is Furthermore, gener- business owners are in For the reasоns stated the Fourth ally responsible patrons for the welfare of opinion in City Circuit’s Schleifer premises, on their in least the sense Charlottesville, (4th 846-47 protect against

that owners must obvious Cir.1998), expressed as well as those in short, In dangers. broadly when read —as Judge opinion Part II of Chief Edwards’ significant it should be to accommodate the III Judge Rogers’ opinion, Part we parental implicated rights ‍​​​​​​‌​‌‌​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​​​​​​‌​​​‌‌​‌‌‌‌​‌‍by the law—the conclude that the District of Columbia’s exceptions great law’s list of leaves room implicates Juvenile Curfew Act the consti- parental for the exercise of control. rights par- tutional of children and their ents, context, scrutiny

In a I had much and that intermediate different have say appropriate gov- about the distinction between level review. For the rea- Opinion sons stated in Part III regulations pa- ernmental facilitate Court, we distinguished rental from those conclude that the Curfew passes scrutiny, Act impermissibly preempt parental and for the rea- rights. stated in agree See Action Televi- sons Part IV Children’s FCC, (Edwards, otherwise sion v. 58 F.3d at constitutional as well. 678-82 C.J., I dissenting). So will not belabor the ROGERS, Judge, Circuit with whom point say, my further here. Suffice it to in TATEL, Judge joins, concurring Circuit view, case involves a situation which part dissenting part, and with whom clear, the Government’s interests are as is Judge joins Circuit II WALD Parts objectives the connection between the III, Judge joins and Circuit GARLAND protection the law and the of minors. Part III: fact, unique this is one of those cases in the governmental regulations which both All members of the that a agree court and, also, protect serve to minors facili- test at as rigorous least as intermediate evaluating by apparent Enticed the success of cur- proper for scrutiny would be cities, fews in other the District of Colum- right fundamental to minors’ burdens on Dallas, transplanted a Texas ordinance bia To the extent of movement. freedom apparent without determination that cir- of the hedges on the breadth the court exactly cumstances warranted the here movement, however, court to free right solution. The of the same Council District if it mistakenly right, concludes of Columbia had an accurate understand- all, protect minors here.1 exists at does ing juvenile crime and victimization right with- plurality to define Were but, problems, are serious so far as the inasmuch as the Consti- regard age, out to shows, for record no accurate basis con- people ages, of all applies tution to in cluding that nocturnal crime certain mi- only determining that age consider public by youths areas under 17 awas successfully resist the inter- nors can less sufficiently part problem serious of this to welfare, in their government ests severely limiting rights warrant departing it avoid from tradi- then could who thousands of minors were neither rights and analysis of fundamental tional likely criminals nor victims crime. right that adults lack a to suggesting supporting rhetoric the curfew therefore freedom of movement. reаlity fit the does not of what the curfew Consequently, does. the court’s labored that the Even when the court assumes to rationale for cur- effort construct a right a fundamental curfew burdens few, attempting to avoid the inconve- movement, applica- to conform its fails by and deficient niences created flawed scrutiny of intermediate tion see, e.g., legislature, information before the example instruction and demon- Court distinction be- Op. eviscerates the judicial proper that the role re- strating scrutiny, tween intermediate which re- to the evidence on which quires attention justifications complex, quires that intruding upon relies legislature burdensome, policy choices emanate from right. properly ap- When fundamental legislature and that burdens be tai- scrutiny intermediate reveals plied, ends, specific rigorous and the less lored key age elements of the curfew— scrutiny, the court de- rational-basis where insufficiently tailored to address time—are policy choices with far legislative fers to juvenile victim- problem crime and evidentiary less concern for serious defects By the legislature. ization that confronted tailoring. or loose juve- half ignoring evidence that almost persons not nile crime is committed because the court accords Accordingly, curfew, covered most respect to minors than is constitution- less that crime occurs at hours not within more deference to the ally required, and curfew, legislature constitutionally has failed to demon- than is war- D.C. Council record, ranted, strate, fit I from hold- requisite respectfully on this be- dissent problem ing and the chosen solu- that the curfew survives intermediate tween the scrutiny.2 tion. assuming expressly apply a funda- Only judges of the court state review that would

1. four right discussing not burden a fundamen- were at stake. that the curfew does mental Judges join right, while Wald and Tatel me tal minors' fundamental of movement therefore, II, 11(A) concluding in Part II that it burdens a I refer to Part Parts I and Judge right movement. Gar- fundamental Judge opinion as that of a Silberman’s land, my opinion, concurring in Part III Judge “plurality.” Elsewhere I refer to Sil- implicates agrees that the Curfew Act consti- opinion court.” berman’s as that of “the rights Judge of minors. Chief Ed- tutional 11(A) Part Specifically, dissent from I impli- agrees that the curfew wards likewise opinion, Judge plurality Silberman’s which Judges significant of minors. cates implicate a that the curfew does not states Ginsburg and Henderson do not reach movement; I concur in question sustain the cur- because would III(A) of the court’s heightened the conclusion of Part few even under the standard of 554 plurality The initially vacillates between

I. reviewing a right, broad and narrow A. ultimately raising only views this case as a question. opinion narrow The first sug- invoking rights Claims plaintiffs gests right invoke to “lib- have of institutional diffi been source erty,” Op. proceeds at but then as if courts, which dence for Article III nothing this case has to do with whether “guideposts reluctant to venture where in general right “Americans” have a to responsible ... are decisionmaking scarce “free movement” it to only because relates City Bark open-ended.” Collins v. juveniles’ right claimed to be free Heights, er S.Ct. supervision Op. adult at night. See 538- (1992). though Yet plurality 39. The seems to assume unchartered, the terrain the Con general right to free movement is en- guarantees “liberty” and stitution’s “due (1) tirely right distinct from a of minors to entrusted, process” are with count along (2) (3) unsupervised at night. movement others, independent oversight less right This distinction between the and a See, judiciary. e.g., Roberts v. United particular unhelp- manifestation of is an 618-20, Jaycees, States ful means of weighing state burden on an (1984). 3244, 82 L.Ed.2d 462 Courts Rather, liberty asserted interest. con- carefully right, must define the contested fronting the broader claim the can court employing specificity ground sufficient develop meaningful guide standards to its right in a application concrete subsidiary review of the claim that is di- generality right sufficient to connect the rectly at issue. See, animating principles. e.g., Wash 702, -, ington v. Glucksberg, 521 U.S. glance, At plurality’s first narrow right construction of the contested seems Connecticut, Griswold v. country sensible. This lacks a tradition of 479, 481-85, L.Ed.2d tolerance for the nocturnal wanderlust of minors, and plurality’s recognition parties The abstractly differ as to how this uncontested fact avoids the more the court right should define the searching analysis that fundamental plaintiffs Appellees-plaintiffs invoke. as- But, inspection, review entails.3 on closer right, sert a broad regardless age, plurality’s narrow statement of what is movement,” appellant- “freedom of while suspect issue relies on a methodology. juveniles defendant denies that have a fun- First, defining a right as the mirror- damental right public places “to wander in (i.e., image particular of a burden night adult supervision.” without States, curiae, specific thing to do the that a challenged United similarly amicus prevents) tips rule opposes juveniles’ against the scales alleged right “to roam unsupervised” during recognizing streets the right. Safeguarding the hours. abstract ideals of the Constitution fre- "minors,” opinion holding scrutiny "juveniles,” intermediate ion uses and "chil- proper reviewing standard for burdens on interchangeably. dren” These terms are not rights; minors’ fundamental from the court's and I dissent precise age because the cutoff for adulthood 111(A) holding in Part that the throughout varies the D.C.Code from under scrutiny. curfew survives intermediate I do 3-301, § see D.C.Code to under see not reach the issues that the court resolves in 16-1021, 22-2011, 24-1101, D.C.Code§§ 11(B), III(B), Parts and IV. See Hutchins v. D.C.Code§ under see to under Columbia, District 3-401, 3-441, 16-2301, §§ see D.C.Code (D.C.Cir.1998) J.). (opinion Rogers, 21-301, 24-1101, 28:1-103, 31-401, to under 21, D.C.Code§ category While the curfew defines a of “mi- 16-2301. nor[s],” 6-2182(5), opin- § see D.C.Code (1979) (plurality opinion). This issue protecting conduct entails quently See, if deeply only recognizes find offensive. arises one at a many citizens Johnson, 397, 109 degree Texas v. sufficient of abstraction to connect e.g., (flag precedent analogous with areas. The California, 403 U.S. burning); Cohen plurality question by citing avoids this (1971) 1780, 15, 29 L.Ed.2d 284 91 S.Ct. governmental clear controlling interests — the Draft” in jacket with “Fuck (wearing wandering of minors in aimless areas corridor); Brandenburg v. courthouse harm where can befall them —to eliminate 1827, Ohio, 89 S.Ct. 395 U.S. any possibility contrary right may that a (Ku (1969) rally). Klux Klan L.Ed.2d fact that a exist. Yet the state have Hence, in a manner must be defined rights good reasons to treat the movement of while disfavored conduct protect that will that of differently minors adults does constraining legislative needlessly not not therefore mean that minors lack a See, e.g., Kennedy v. discretion. executive movement; right only to it means that the Mendoza-Martinez, may in be insuf- right some circumstances By defin- 9 L.Ed.2d 644 particular ficient a to overcome burden. rights in the narrowest sense ing minors’ v. Ho- Mississippi Univ. Women plurality separates conduct possible, the gan, 458 724 n. discomforting many adults from that is (1982). Consequently, age 73 L.Ed.2d 1090 process doc- principles that animate due right should not be an element of the rarely will re- trine. Disfavored conduct issue because the state interests that are absent regulation state of its own force sist balancing stage analysis relevant at the of guiding of a more abstract intervention inquiry defini- do aid the distinct ostensibly neutral principle. By using the stage. tional a to transform a process defining of Third, narrowly construing rights dis- into one about freedom of movement case judgments, does places delicate value plurality in rambling, nocturnal about of not avoid them. The admirable aim rights ignores effect the role that abstract “rein in narrowly defining right is to constitutional discourse. play shaping subjective necessarily elements that are Second, plurality’s decision to define judicial review.” present due-process confuses the right narrowly the asserted -, at 2268. Glucksberg, at balancing inter- question ultimate state prone manip- Broadly rights defined interests with the against ests individual ulation, ample afford courts discretion an question of how to define individual’s con- applying general principles when interest with sufficient care to ensure Rights defined too patterns. crete fact judicial review is not hollow exercise however, oppo- from the narrowly, suffer The to conventional wisdom. deference specific the defini- problem: site the more plurality has relied on the District of Co- vitality can right, the more its tion of strong of the curfew to lumbia’s defense judicial preference question become a nothing there is to defend hold legislative dis- deference to unwarranted principle against is no against there —that court lacks external cretion because the Op. need be tested. See which the curfew By asking analysis. its guide standards in this case The difficult issue 538-39. a curfew question, such as ‘does a broader inter- reconciling conflicting two involves generally interfere with a impermissibly public individual freedom to walk on ests: movement,’ court intervention, applicable right police streets without fear prece- standards and Turner, gain can access to see, v. e.g., Gomez analysis. guide (D.C.Cir.1982), dents to structure authority 143 n. 18 and the objective answer to may never be an of There to act in the best interest of the state Baird, indi- see, involving claim the balance between minors, e.g., Bellotti v. interests, Moore 622, 633-34, state rights 61 L.Ed.2d 797 vidual cf. Cleveland, professes East court act City out of concern for judicial Op. restraint. See at 538. 52 L.Ed.2d 531 (1977) opinion), ways but some (plurality Fourth, narrowly focusing on the move framing ensuing analy- the claim make the opposed ment to a minors —as principled than others. sis more See Poe right of generally needlessly movement — Ullman, 497, 541-45, equal entangles protection process and due (Harlan, J., analysis by defining a fundamental dissenting). people with reference to the class of as serting Usually, process it. due challenges plurality’s methodology also ob- generally applicable rights, involve while another, deeper, scures judg- still value equal protection challenges involve bur Here, plurality ment. defines the as- dens that fall disproportionally classes case, narrowly; in right serted another Here, appel- share disfavored trait. might court define a right broadly, more lees-plaintiffs types have raised both plurality because the does not articulate a claim under the Fifth Amendment. How guide process defining standard to ever, youth because do not allege rights. The court’s choice about how ab- classification,4 suspect is a their Fifth stractly may easily to define a right be- Amendment turn ques claims on the same come underly- influenced its view of the tion: whether rights at issue are fun conduct at ing issue. Favored conduct will damental, such that burdens on minors’ with integrated similar cases that have movement heightened judicial warrant protected analogous rights, while disfa- scrutiny. Georgia, Bearden v. 461 U.S. Cf. relegated unpro- vored conduct will be 660, 666-67, 103 2064, 76 L.Ed.2d 221 tected isolation. Compare Franz v. Unit- plurality The recognizes this over States, (D.C.Cir.1983) 582, ed 707 F.2d 595 n.l, lap, Op. see at 535-36 but blurs the (recognizing parent “freedom of a tests: incorporating component a class maintain, cultivate, child to and mold their (youth) into the right, definition of the ongoing relationship”) with Dronenburg v. plurality avoids answering the difficult Zech, 1388, (D.C.Cir.1984) 1395 question of youth acceptable whether is an (rejecting right to “homosexual conduct in narrowing scope criteria for of an oth Navy”). Although subjectivity this (i.e., applicable right erwise right plagues any attempt appropriate to find an curfew), would shield adults from a similar level of generality at which to define a and instead rights applicab assumes no right, it is more disconcerting where the le.5 Supreme subjected Court has attempted classifica- have suspect to define a age quasi-suspect tions based on old to rational class. basis re- 452, view, Gregory Ashcroft, see 501 U.S. 5. The age- Court has avoided such 470, 2395, (1991); 111 S.Ct. 115 L.Ed.2d 410 based rights distinctions in other fundamental Murgia, Massachusetts Bd. Retirement v. cases, example, cases. For in abortion 2562, 427 U.S. 96 S.Ct. L.Ed.2d 49 underlying right Court has never held that the (1976), 520 but has not considered classifica- separately juveniles. is Instead, defined for adults and youth. tions based on Whether laws that weighed the court has state interests target young elderly rather than the would against light right minors’ interests in political warrant a different result under the See, Wicklund, e.g., at issue. Lambert v. 520 process theories on which the Court has re- 292, 1169, U.S. 117 S.Ct. 464 L.Ed.2d area, see, e.g., lied in Murgia, this 427 U.S. at (1997); Minnesota, 417, Hodgson v. 497 U.S. 313, 2562; Bradley, 96 S.Ct. Vance v. 2926, (1990); 110 S.Ct. 111 L.Ed.2d 344 Ohio 93, 1, 939, U.S. 113-14 & n. 99 S.Ct. Health, 502, Reprod. v. Akron Ctr. for (1979) (Marshall, J., dissenting); 2972, (1990); City 111 L.Ed.2d 405 Co., United States v. Carolene Prod. Health, Reprod. Akron v. Akron Ctr. cf. of U.S. 144, 4, 152 n. 82 L.Ed. 76 L.Ed.2d 687 (1938), question day; (1983); is a for another Ashcroft, Planned Parenthood Ass'n v. appellees-plaintiffs while have advanced a 76 L.Ed.2d 733 Matheson, vaguely equal protection theory, they stated H.L. subjectivity plurality seeks to rea plurality’s reductionist

Finally, the avoid. methodology relies on soning Op. repudiated. has

Supreme Court D., H. In Michael v. Gerald

at 538. B. (1989), foreshadowed Justice Scalia analysis From this it follows that funda by suggesting approach court’s should be defined more contested “the most must be defined at mental ways: first without re- abstractly two which a relevant tradition specific level at regard without gard age, second to, the denying protection protecting, or the manner in which it is exercised. This Id. at can be identified.” asserted issue, discusses the former section Higher “level[s] 127 n. 109 S.Ct. 2333. section discusses the latter. nei- next Id. were to be avoided. generality” necessary ther section is it to define a However, Rehnquist only Chief Justice “right liberty,” Op. but neither is opin joined portion of Justice Scalia’s necessary rights of to disconnect the ion; Kennedy, who Justices O’Connor night minors at from those of citizens joined the remainder of Justice Scalia’s general, Op. at 539. in refused to concur his opinion, pointedly a co- plurality right The defines how to define fundamental discussion of minors, only involving herent cases 132, at 109 S.Ct. 2333 rights. See id. is an element of age of the claimant (O’Connor, J., part, joined by concurring Apparently, plurality definition. J.). Brennan, Likewise, Kennedy, Justices privilege freedom of movement as a views Marshall, rejected Blackmun Justice and into by passage at ritual earned —if that it relied on a analysis, noting Scalia’s all— “[cjonstitutional rights Yet do adulthood. “stagnant, as a vision of Constitution being magically not mature and come into archaic, steeped document hidebound only when one attains the state-defined prejudices superstitions of a time adults, Minors, as well as age majority. past.” id. at 109 S.Ct. long pos- protected are Constitution (Brennan, J., dissenting).6 In the ten 2333 Danforth, 428 decided, rights.” sess constitutional Michael H. was Jus years since 74, question The 96 S.Ct. 2831. approach defining tice to funda Scalia’s rights, “fundamental” like here is whether garnered majori never a rights mental has ap- Court;7 rights generally, more yet plurality “constitutional” ty Supreme on the it, ply minors.8 inviting now embraces to of this court 1164, 2791, (1981); (opinion of 120 L.Ed.2d 674 Bellotti v. 3035, S.Ct. Souter, Bаird, 622, O’Connor, JJ.). Kennedy, S.Ct. 61 443 U.S. 99 Cf. (1979); York, 255, (3d v. City L.Ed.2d 797 Planned Parenthood 267-68 v. Lutz 2831, 52, Danforth, S.Ct. 49 1990). 428 U.S. 96 Cir. (1976). But Reno v. Flores L.Ed.2d 788 cf. 292, 302, 1439, S.Ct. 507 U.S. rights apply all minors of 8.Whether such to 341, (1993); 113 S.Ct. 1439 L.Ed.2d 1 (Stevens, id. ap- any age the curfew is irrelevant because J., dissenting). pres- plies and thus to all minors under among age distinguish no occasion to ents opinion concurring

6. Neither Justice Stevens’ particular groups speculate when a about dissenting opinion nor Justice White’s address age might defer- cutoff warrant additional defining methodology Justice Scalia’s for burdened, by discussing rights ence. curfew, rights. See 491 U.S. to become distract- there is no reason J., (Stevens, concurring judg- in the D.C. of toddlers. Neither the ed the claims J., ment); (White, id. at 109 S.Ct. 2333 in the the District of Columbia Council nor dissenting). persons of tender district court indicated See, problem the curfew ages part were e.g., Southeastern Planned Parenthood of 833, 847, remedy. sought Casey, Pa. v. 505 U.S. juve- apply accused of crimes also possess adults that minors no doubt There is “fundamental,”9 including does not niles .... But the Constitution rights process and due First Amendment10 of all differences mandate elimination pro- equal right as the as well rights,11 juveniles.” Schall v. the treatment of similarly situated children.12 tection Martin, burdens Likewise, some of the minors bear (1984); see McKeiver L.Ed.2d 207 also The more diffi- accompany rights.13 528, 91 Pennsylvania, scope of to define the question cult is how 1976, 29 L.Ed.2d 647 in view of the rights these fundamental authority over chil- fact that state’s “[t]he these reading of The most reasonable like than over dren’s activities is broader many and adults share cases is that minors adults.” Prince v. Massachu- actions of protective rights, but that setts, rights is contracted force of some of these see also id. at L.Ed. 645 applied to minors. To or diluted when Court has con- S.Ct. 438. boundary extent that a defines dilemma in various circum- fronted this authority, age generally state stances, attempting to tailor each case to the meaningful credential access fit concepts jurisprudence from adult zone, protected “magically” conferring ad- by juveniles. example, For minors claims There given birthday. mission on a significant “are entitled to a measure the boundaries good making reasons for protection,” First Amendment Erznoznik than of a more malleable for minors Jacksonville, City stronger adults —states have countervail- (1975), ing minority status renders interests of minors the “First Amendment inter- competent minors less to resist state ‘co-extensive with those of are not ” denying vention14—but not for the exis- 11, Id. at 214 n. 95 S.Ct. 2268 adults.’ at least not right altogether, tence of the Tinker, 515, at (quoting 393 U.S. 89 S.Ct. capable exercising minors are where (Stewart, J., concurring)). Similarly, 733 course, the rationale for a context, right. Of where process in the “certain basic due by questions suitability protections enjoyed right constitutional raises about juvenile Indep. Community 9. Tinker v. Sch. differences between adult and audi- Des Moines 511, 733, Dist., 503, ences. 393 U.S. 89 S.Ct. 21 (1969); Danforth, 428 L.Ed.2d 731 see also 565, 581-82, Lopez, 11. See v. 419 U.S. 74, 2831; Gault, Goss U.S. at S.Ct. In re 387 96 729, (1975); 42 L.Ed.2d In re 95 S.Ct. 725 1428, 1, 13, U.S. 87 S.Ct. 18 L.Ed.2d 527 1068, 358, 365-68, Winship, S.Ct. 397 U.S. 90 (1967). Gault, 28, (1970); 25 368 387 U.S. at L.Ed.2d 87 S.Ct. 1428. Tinker, 506, 733; 10. See 393 U.S. at 89 S.Ct. Barnette, Virginia West State Bd. Educ. v. See, Doe, 202, e.g., Plyler 12. v. 457 U.S. 102 1178, 624, 319 U.S. 63 S.Ct. 87 L.Ed. 1628 2382, (1982); S.Ct. 72 L.Ed.2d 786 v. Stanton (1943). plurality Ginsberg The cites v. New Stanton, 7, 1373, S.Ct. 43 421 U.S. 95 York, 629, 1274, 390 U.S. 88 S.Ct. Perez, (1975); U.S. L.Ed.2d 688 v. Gomez (1968), proposition for the that minors 535, 538, 872, (1973); 93 S.Ct. 35 L.Ed.2d 56 Op. Amendment interests. have narrow First Educ., 483, Brown v. Board 347 U.S. However, Ginsberg at 539. 686, (1954). S.Ct. 98 L.Ed. 873 But see Reno only may separate Court held that states use 306, 1439, Flores, 292, v. 507 U.S. 113 S.Ct. obscenity standards of for adults and children (1993). 123 L.Ed.2d 1 mi- account for different reactions of id. at nors and adults to similar ‍​​​​​​‌​‌‌​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​​​​​​‌​​​‌‌​‌‌‌‌​‌‍material. See See, Kentucky, e.g., v. Stanford holding hardly 88 S.Ct. 1274. This 361, 2969, (1989). surprising obscenity protected because is not speech, Oklahoma, see id. at generally Thompson 14. See v. 815, 823-25, 834-35, obscenity part standards focus in on audience S.Ct. (1988) (plurality opinion). composition may 101 L.Ed.2d 702 and thus account for minors, possess might for minors not 92 L.Ed.2d 549 all, having Ingraham Wright, a less v. right opposed as (1977). example, of it. For al- robust version Just as right a fundamental though there is adults have more freedom as civilians see, Safley, marriage, e.g., prison Turner 482 than as or inmates members of the forces,15 96 L.Ed.2d 64 armed minors’ rights vary de- (1987), home, might apply pending not below a certain on they whether are at (The streets, relatively age. age mature of con- school. for in the District of marriage sent Colum- plurality The assumes that minors can- 80-103.) § bia is 16. See D.C.Code not a right “unsupervised” claim to be developmental prerequisites walking they always because are “some form of however, street, public are down sub- custody.” Op. at 539. This characteriza- stantially than for bundle of lower point. subject tion misses the Minors

rights and mar- responsibilities attend by unaccompa- curfew are definition riage. by a responsible nied adult. To say they sense, metaphysical are in some bond of In a relative that is “fun “custody” begs question whose cus- relationship damental” for adults their in, tody they are and the fundamental, extent to which equally with the state is if forceful, personal prerogatives certain are immune equally for minors because it restraint, from custodial a gov- least activity defines the few areas of warrant minimum, ernment At custodian. unac- especially ing tailoring careful of intrusive companied Minors, minors are not under direct worthy state means to state ends. control, adults, government and thus theories of enjoy like are able to the fruits of custody announced in a case dealing with free movement and to chafe under its re striction, juvenile delinquents incarcerated are un- and thus there is little reason to helpful in assessing imposed link burdens fundamentality to the Op. citing curfew. See Schall age of the claimant. on which The cases Martin, scope the court to contract the relies L.Ed.2d The Su-

minors’ rights inapposite to curfews preme contexts, appeared recognize Court unique because arise such Prince, much in which relied on a balanc- challenges regulations to school parental ing of state and interests rather disciplinary procedures, in involving state than an custody undifferentiated notion of terests associated with the educational en regulate pub- to the activities of minors in warranting vironment enhanced control Prince, See, lic streets. See 321 U.S. at e.g., over minors’ behavior. Vemonia Acton, 64 646, S.Ct. 438.16 School Dist. v. 515 U.S. 47J 656, 2886, 115 S.Ct. 132 L.Ed.2d 564 (1995); Hazehvood Dist. v. Kuhl School C.

meier, 260, 266-67, 562, 484 108 U.S. S.Ct. (1988); discussed, 98 L.Ed.2d 592 Bethel Dist. School For the reasons the conduct Fraser, 675, 685, No. v. generally 478 U.S. 106 at issue should be more defined 403 See, Palmer, 517, e.g., custody generally possess Hudson 468 U.S. v. inmates in state 15. 524, 3194, (1984); 104 S.Ct. 82 L.Ed.2d 393 rights that are "not inconsistent with ... sta- Glines, 348, 354-55, v. 444 Brown U.S. 100 legitimate peno- prisoner tus as a or with the 594, S.Ct. 62 L.Ed.2d 540 logical system.”). objectives of the corrections custody, Even if minors are in some form custody concept, 16. Even if were a relevant they possess rights not inconsistent with their simply reciting presence would be insuffi- legitimate objec- status as minors or with the negate generally applicable right. cient to entity. The court would Procunier, 817, 822, tives of custodial Pell v. 417 U.S. 94 Cf. 2800, (1974) inquire therefore need to whether (holding, S.Ct. 41 L.Ed.2d 495 analogous prisoners’ rights, area of survives this test. 560 Therefore, ques- ing right itself. activity of movement encompass

to defined as engage before the court should be minors tion particular how than rather to right definition of limited whether there is a plurality’s The in it. thereby subjecting to flow from appears public walk in without right contested short, right minors custody; of what perception police an unarticulated oneself “freely wanderfing] doing while might be to free movement. How minors Op. at 539. night.”

... at abuse, exercise, they their whether II. weighing is relevant right to movement contrary constitutionality of a state A. burden, part but should not jurisprudence on Court’s Plaintiffs right itself. definition of several encompasses to “move” right prevents that the curfew this case contend compo- concepts. The discrete distinct a means using public streets as them from from right include the to relocate nents place one to another. conveyance from state, ¶ ¶ cross state 6, 7, 11, 12, 13, 14, state to 3, 4, Complaint relocation, purposes than borders for other any one They linger do not seek to 15. borders, and the area, to cross national location, any particular to access or. localized movement. right to intrastate or District of park, as a that the Colum- such es- are “fundamental” under These special reason to close. might bia have Arti- early As as the Rather, protest a blanket restriction tablished doctrine.17 Confederation, “pos- state citizens they plan to cles of movement. Whether on their 539,' amble, stroll, right, inherent sessed the fundamental Op. at in. “wander” —or irrelevant; peacefully only governments, all free citizens of sashay, or saunter —is respec- their dwell within the limits of under the Constitution is whether question states, place at will a fundamen- tive to move the District’s action burdens therein, ingress free public place and to have right to be on and to use streets. tal walk, therefrom.” United egress how one does thereto and When one chooses to Wheeler, 281, 293, 41 so, v. 254 U.S. goes, and what one does States where one 133, (emphasis 65 L.Ed. 270 there are factors relevant to review- S.Ct. once added). ing right, burdens on the but not defin- Roe, 489, See, Twining Jersey, v. New 211 U.S. e.g., v. Saenz 14, (1908); 1518, (1999); Williams v. L.Ed.2d Kolender 53 L.Ed. 97 1855, 274, 128, Fears, Lawson, U.S. v. Cases, Williams, (1900); (1983); Slaughter-House L.Ed. 186 75 L.Ed.2d 903 Zobel v. (16 Wall.) (1872); 21 L.Ed. 394 60 n. U.S. Wall.) Helms, (12 (1982); Maryland, Jones Ward 430, (1870); Virginia, 75 20 L.Ed. 449 Paul v. 168, 180, (1868); (8 Wall.) County, L.Ed. 357 Hosp. Maricopa U.S. U.S. 19 Memorial v. 415 Nevada, Wall.) 35, 47, 250, 254, 1076, (6 39 L.Ed.2d 306 Crandall v. 73 U.S. 94 S.Ct. 330, Cases, Blumstein, (1867); (1974); Passenger U.S. 405 U.S. L.Ed. 745 48 Dunn v. 18 283, 492, (Taney, 338, 995, (1972); (7 How.) (1849) 274 12 L.Ed. 702 S.Ct. 31 L.Ed.2d 92 Jacksonville, ., Coryell, City dissenting); J v. 6 F. Papachristou v. 405 U.S. Cotfield of C. 156, 164, 839, 546, (C.C.E.D.Pa.1823) (per 110 Cas. 552 Wash 92 S.Ct. 31 L.Ed.2d 88, Justice). (1972); Rights Breckenridge, ington, Civil v. 403 U.S. Circuit Cf. Griffin Cases, 3, 39, 18, 105, 1790, (1971); S.Ct. 27 835 338 109 U.S. 3 L.Ed. 91 S.Ct. 29 L.Ed.2d J., 618, 629, (Harlan, (1883) dissenting) (noting, while Thompson, Shapiro v. 394 U.S. 89 2 1322, (1969); person discussing right 2 L.Ed.2d 600 "the of colored S.Ct. United 757, Guest, 745, "per improved public highway,” that 86 S.Ct. use an States v. 383 U.S. consists, Blackstone, 1170, (1966); liberty says in the Aptheker v. sonal 16 L.Ed.2d 239 situation, 500, 517, locomotion, State, changing power of Secretary 378 U.S. 84 S.Ct. of of Dulles, 1659, (1964); place removing person v. one’s to whatever direct, 12 L.Ed.2d 992 Kent 1113, without re 2 L.Ed.2d one’s own inclination 357 U.S. 78 S.Ct. law”) straint, (1958); California, (quota U.S. unless due course of 1204 160, Edwards v. 314 164, omitted). 174, (1941); 62 S.Ct. 86 L.Ed. 119 tion marks

561 however, date, importance mobility the Court has not of intrastate is To expressly held that there is apparent from utility implica- and the movement, possibly be to intrastate right tions of its denial. As Douglas Justice contested.18 seriously cause it has not been explained: discussing cases

While most of the movement, Freedom of at home and “right “right to travel” or to free move abroad, important job is for and busi- an inter ment” have involved interstate or opportunities cultural, politi- ness —for component, in the deci language national cal, and social activities—for all the com- extends to suggests sions which mingling gregarious enjoys. man movement, see, Kolender, purely e.g., local Those with the of free movement 358, 1855; Papa 461 U.S. at use it at purposes. times for mischievous christou, 164, 839; at 405 U.S. But many is true of liberties we Kent, 1113; 126, 78 S.Ct. enjoy. place We our faith nevertheless Wheeler, 293, 133; 254 41 S.Ct. them, restraint, and against knowing v. Maryland, Bell 84 abusing liberty the risk of so as (1964) 1814, (Doug 822 give punishable las, J., part rise conduct is of concurring), and at least two cir price pay we free expressly agreed. society. cuits have See Lutz v. (3d York, 255, City 899 F.2d 268 Cir. of 519-20, Aptheker, 378 U.S. at 84 1659 1990);19 King v. New Rochelle Mun. J., (Douglas, concurring). Plaintiffs have (2d Auth., 646, Housing 442 F.2d 648 Cir. “cultural, asked for nothing more than the 1971).20 recognized This circuit has also political, ... and social commingling” movement, free noting the value of permits. example, free movement For one streets, ability to “walk the without go practice, would like to swimming explanations papers, surely or formal ¶ 4, Complaint at perfor- another to ballet among the cherished liberties distin ¶ mances, 11, id. at and another to dances guish many this nation from so others.” ¶ movies, late-night id. at 16. Viewed Turner, 134, n. Gomez F.2d isolation, these are of great activities no (D.C.Cir.1982); Barry, see also Waters v. moment; together, constitutional viewed (D.D.C.1989). 1125, F.Supp. rhythm daily constitute the life for Thus, street, simply being public on a city’s youth, our and the fruits of a stable without some further incidence of misfea sance, pluralist society tolerant of individual lib- usually not a crime. Shuttles Cf. Thus, erty. even if this case raises a City Birmingham, worth v. purely question intrastate is not at —which J., (Douglas concurring). precedents recognize all a funda- clear21— plurality Hosp., 18. Even the concedes that a “draco- Memorial U.S. at Cf. implicate Bray nian” curfew could a fundamental S.Ct. 1076. But v. Alexandria Wom cf. Clinic, right, Op. avoiding question en's Health present imper- whether the would be Ward applied City missible if to adults. If the curfew well v. Board Educ. School Dist. Cincinnati, (6th scrutiny applied City would fail intermediate 627-28 adults, Jackson, Cir.1976); given weight Wright City then the court has scant F.2d not, (5th 1975). rights; if to minors' then court’s 902-03 Cir. conception of fundamental is too nar- row. 21. The record does not indicate whether the travel, impedes curfew which interstate is “right likely 19. The Circuit the Third held that because numerous residential commu- freely neighborhood move about one’s nities in the District of Columbia abut the time, borders, subject place, Maryland Virginia town” and re- was to reasonable and the restrictions, gion integrated and manner and that such re- an transit net- shares mass prevents young strictions were reviewable under intermediate work. The curfew Dis- thus Lutz, leaving scrutiny. rather than strict See trict of from and Columbia residents presumably attempts young Virginia at 268-69. to bar 562 ob- enforcement legitimate and law spaces streets through public right to walk mental Ohio, 1, see, e.g., Terry 392 U.S. jectives, v. po- subjecting oneself thereby

without (1968), 1868, may L.Ed.2d 889 20 88 S.Ct. custody.22 lice free movement. burdens on justify also B. plurality’s the limits should vitiate These apparently fears plurality The to free recognizing right concern that right the to move extend[ing]” authority “lightly impair a state’s would movement of trivi searching review Op. at require lights. ment will 538. operate traffic to movement impediments not incidental does right al or to free movement to the “basic any relation is a not bear of which movement that do shield all conduct Op. at right. the simply an individ- component, protects notions” that animate pres- As misplaced. are for mere police concerns ual from interference 538. These more, ence, public to free movement on a street. right without any right, with burdens, in unlimited; reasonable is not Moreover, preoccupation plurality’s and ] are cluding those “incidental! misplaced. burdens is with incidental Williams, 179 acceptable. ]” be, remote! —are might curfew else the Whatever 128; 274, Shapiro, see also at 21 S.Ct. U.S. does The curfew an incidental burden. not 1322; 629, v. at 89 S.Ct. 394 U.S. peo- specifically Califano identified not cover a few 170, 177, Aznavorian, 99 S.Ct. U.S. 439 thousands; it does a class of ple, it covers Lutz, (1978); F.2d 471, 899 L.Ed.2d 435 58 areas, but to an apply to a few discrete 8, 117 Glucksberg, at - n. at 269. specific city; it does not constrain entire Cf. (Souter, J., concurring); n. at 2282 8 movement, S.Ct. excep- but with few types of Takushi, 112 504 Burdick v. U.S. public; it is not all movement tions bars 2059, For 119 S.Ct. period, to a brief but extends confined noted Supreme has example, short, Court day. roughly 25% of the travel to government might bar that the consequences recognizing imagined emergencies regions certain and exaggerat- proposed right inapposite, certain options ed, constrain the travel settled doc- and can be addressed citizens, as felons. See classes of such trine. Rusk, U.S. 85 S.Ct.

Zemel v. 381 III. 1271, 14 179 L.Ed.2d Jones II Helms, 420, in Part Having 101 concluded 452 at S.Ct. U.S. right, join I burdens a fundamental Likewise, public regulating conduct wards, 178, (Douglas at S.Ct. 164 entering their 314 U.S. 62 Maryland residents 183-84, (in J., S.Ct. capítol, exceptions concurring); limited id. at nation's with curfew). J., (Jackson, to the concurring); Twining, the form of "defenses” 211 U.S. Cases, 14; 97, Slaughter-House 29 S.Ct. at clear, however, origin of this 22. Less 79, (16 Wall.) the dormant com- U.S. at right, Supreme Court never has which the see, Edwards, clause, e.g., U.S. at merce authoritatively partly because of pinpointed, 62 S.Ct. 164. Given differences, potentially thus distinct to move- Court's reluctance attach among rights that the origins, the discrete see, provision, single to a constitutional ment possible Among the Court has addressed. 1170; Guest, e.g., 383 U.S. at process are the due claus sources of the Helms, 418-19, 101 452 U.S. at S.Ct. Jones Amendments, es of the Fifth Fourteenth 2434; Hosp., U.S. at 280 n. Memorial 505-06, see, e.g.,Aptheker, 378 U.S. at J., dissenting); (Rehnquist, Sha- S.Ct. 1113; Kent, 1659; at 357 U.S. piro, at there is Williams, 179 U.S. at debate; resolve the no for this court to reason privileges clauses of Article and immunities rather, simply - to conclude it suffices here -, IV, see, Saenz, e.g., complaint subject to review states a Ward, (12 claim 689; applied balancing generally 180; test 430; Paul, Wall.) (8 under Wall.) frequently rights, under the most Corfield, Four and the F. Cas. - Amendment, see, Saenz, component the Due Process substantive e.g., teenth -, 689; 143 L.Ed.2d Ed- Clause. 119 S.Ct.

563 holding, Nothing the court as has Fourth inherent in the definition of a Circuit, v. City Charlottes right fundamental requires that “strict Schleifer (4th ville, 843, Cir.1998), cert. 159 F.3d 847 scrutiny” apply here. While burdens on — denied, U.S. -, 1252, 119 143 S.Ct. fundamental rights trigger the most exact (1999), appropriate L.Ed.2d 349 available, ing review which as to adults is is standard review intermediate scruti scrutiny, strict possible for a less 541; Hutchins, ny. Op. at see also See stringent standard to be the most exacting 144 (opinion Rogers, F.3d at 809-10 available for Carey Popu minors. See v. J.).23 Int'l, 678, 15, lation Serv. 431 U.S. 693 n. 2010, pro Fifth Amendment substantive due 97 S.Ct. 52 (plu L.Ed.2d 675 equal protection cess and scrutiny gen rality opinion). Even though there is a erally scrutiny applies two-tiered: strict to formalistic allure to treating all fundamen rights, burdens on fundamental while ra alike, tal rights and therefore applying lawys scrutiny applies tional basis burdens scrutiny strict regulating minors as rights that do not qualify as fundamental. adults, well as to do so would ignore the See, at -, e.g., 117 Glucksberg, S.Ct. at real, and legally accepted, differences be 2271; Doe, 312, 320, 113 Heller v. 509 U.S. tween minors and adults. As noted in (1993). 2637, 125 S.Ct. Under I, Part minors and adults share basic standard, either courts must determine rights, rights these have less force whether the in imposing state’s interest a when used minors as against shields challenged sufficiently weighty, burden is regulation. Unduly judicial intrusive scru and whether the state’s means are suffi tiny burdening of laws minors would fail to ciently tailored to its ends. scrutiny Strict respect the amenability relative of minors compelling demands narrow to a tailoring to regulation and would demand too much interest, Flores, 292, see Reno v. justification government from in an area in 302, (1993), 113 1 S.Ct. frequently which it must act. Burdick Cf. while rational basis review demands a ra Takushy 428, 433-34, v. 112 relationship tional to a legitimate interest. (1992). 2059, 119 L.Ed.2d 245 Given that Employment See Ohio Bureau v. Serv. the right force of to movement varies 471, 489, Hodory, 431 U.S. it, people with the status of the asserting (1977). 52 L.Ed.2d 513 Between these the standard of review must be sensitive to poles scrutiny, lies intermediate which al applied. context which it is As analysis usually- lows more refined than cautioned, “[ljegal Justice Frankfurter the fatal scrutiny rarely-fatal strict ration phrasing ories and their other cases al review. To satisfy basis intermediate readily reasoning lead to fallacious if uncri scrutiny, substantially burden must tically transferred to determination of a important an related to interest. See children,” duty May State’s towards v. Virginia, United States v. Anderson, (1953) (Frankfurter, J., 97 L.Ed. con IV, explained As Part this stan curring). respect dard is flexible enough to state regulatory prerogatives while When a minor’s exacting protect issue, enough individual from movement is at intermediate rather unnecessary encroachment. than scrutiny appropriate.24 strict is most applied scrutiny scrutiny emerged 23. Two circuits have equal strict Intermediate juvenile assumption protection jurispru- curfews based on the and First Amendment issue; dence, appropriate process a fundamental was at none has but is also in due 847; Lutz, applied scrutiny. Schleifer, rational basis v. cases. See 159 F.3d at Nunez (9th 269; City Diego, City Tigard, San 899 F.2d Dolan Qutb Cir.1997); Strauss, F.3d L.Ed.2d (5th Cir.1993). (1994); Moore, U.S. at 564 scrutiny, statu intermediate scrutiny, as To survive of intermediate The essence substantially related be review, must tory burdens is basis rational from distinct See, interest. important government its burden to an must tailor government 456, 461, Jeter, 108 and 486 important ends U.S. e.g., and Clark relatively specific Hog (1988); exceed or 465 law that 100 L.Ed.2d of the S.Ct.

justify incidents par is Re Tailoring 102 3331. those ends. at S.Ct. an, from 458 depart U.S. mi rights far from important when ticularly under this standard view stake, Lucas, substantial inasmuch as 427 “toothless,” at U.S. nors are Mathews v. the treatment discrepancies between 495, 510, 49 S.Ct. 96 turned on have often and minors meaning adults (1976), given has this court and rather than assumptions unsubstantiated v. Federal Com Lamprecht ful bite. See evidence. persuasive Comm’n, F.2d 391- 958 munications Gault, in In re opinion Court’s Thomas, (D.C.Cir.1992) Circuit (per 98 s (1967), 1428, 18 527 which L.Ed.2d 87 S.Ct. Justice). place duties The standard juvenile in courts procedures invalidated legislative and courts: legislatures both in procedures from vastly differed “reasoned,” judicial and must be analysis Gault, courts, instructive. adult Hogan, “searching.” be analysis must special inter the state’s recognized Court 726, 728, Only 3331. 102 S.Ct. at U.S. juve justice providing informal est a reasonable demonstrate burdens that niles, magnitude concerned but was their benefits “congruen[cej” fit—or —with adopted pur that states the ‘reforms’ See, Turner scrutiny. e.g., may withstand interest, wide stating “[s]o of this suit Commn System v. Federal Broadcasting of the treatment between the State’s gulf Com’n, ications bridge requires and of the child adult Board L.Ed.2d and reasons verbiage, mere than sturdier Fox, Trustees v. рrovide.” can than persuasive cliche more (1989). A 1428; 29-30, also id. Id. at minors seeking protect need legislature holding 21-22, The Gault 1428. “scientifically certain criteria produce ensuring a rea concern for judicial reflects Ginsberg, legislation,” legitimate state ends “fit” between sonable (citation omitted), but nei 88 S.Ct. 1274 adopted to advance them the means and specu can it on unsubstantiated ther rest distinctions between predicated on cases Gault, See, U.S.. e.g., lation. scrutiny en juveniles adults. Such it, put has as this circuit Or disproportion regulations sures concerning ‘predictive judgments’ “[a]ny juveniles are ately burden well-considered in be and the differences group behavior merely well-intentioned. and not groups must at the among different havior by meaningful evi very least sustained IV. at 393. Lamprecht, 958 F.2d dence.” in- may survive juvenile curfews Some “impor- clearly satisfies The curfew cur- scrutiny, present but the termediate requirement of intermediate tant interest” ‍​​​​​​‌​‌‌​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​​​​​​‌​​​‌‌​‌‌‌‌​‌‍legitimate The curfew has few does not. reduce curfew scrutiny. The seeks ends, inadequately Council but the D.C. minors, to assist against crime light these ends tailored means out carrying “in parents guardians impos- severe burdens reasonable responsibility to exercise their rights. es on minors’ scope their entitle- tiffs to determine (plurality opinion); Power Co. v. Duke cf. Inc., Study Group, Borrowing equal protection Carolina Envtl. ments. 59, 83-84, appropriate given analysis particularly is thus Moreover, process due the instant process due to tailor adult the need protection because equal overtones claim has younger claimants. plain- part the court uses status

565 Boren, § supervision 190, of minors.” 6- crafted. Craig D.C.Code See (1976). 50 L.Ed.2d 397 2181(e)(l)(3). goal. Each is a laudable See, e.g., Hodgson, First, 497 U.S. at 110 upon the evidence which the D.C. Council relied is too broad 2926; Schall, because it docu- S.Ct. problem ments a that the curfew does not Bellotti, 2403; S.Ct. applies address. The curfew only per- (plurality opinion). As the sons under but the statistics include notes, present court the D.C. Council was by youths crimes as old as 17 and victim- ed with a wealth of evidence of the serious ization youths as old as 19.25 See 942 juvenile problem in ness of the crime 675; F.Supp. at Casey Annie E. Founda- Op. District of Columbia. See at 542. The tion, Kids Count Data Book: State Profiles however, difficulty, lies the D.C. Coun (1995). Well-Being Child at 49 This warrant cil’s conclusion these ends anomaly statistical is more than technical particular imposes burdens that the curfew approximately because all juvenile 42% of many on minors. There are ways to re referrals the District of Columbia courts from 1990-1994 youths age involved over juvenile duce crime and victimization and Relying 16.26 on data that youths includes units, family to strengthen some of which aged significantly 17 therefore overstates are more extreme than others. ques The problem that a curfew limited to those tion here is whether the is too curfew under 17 can solve. The govern- District given extreme the evidence by considered ment is of course free to limit a curfew to adopting D.C. Council before it. Cf. ages appropriate, whatever it deems but it Doe, Plyler v. n. 102 may justify only the curfew with data that (1982). targeted is relevant to the ages. Here the explained District has not why the curfew The curfew has three essential elements: targets substantially less crime and victim- operates on a defined class defined ization than outlined in the data offered to places at defined gov- times. The District it, support accordingly and the court has ernment defends each definition with sta- no basis for deferring legislature’s to the tistical cataloging epi- evidence a severe impose decision to a curfew that excludes juvenile demic crime and victimization. minors seventeen and older while burden- juveniles While are the source of and vic- ing minors under seventeen.

tims of an intolerably large volume of Second, the evidence on which the D.C. District, crime examination of the Council relied is also too narrow because it record reveals that the evidence not does juvenile does not indicate when crime and fit the definitions the D.C. Council victimization occur.27 Such information is applies 25. Section five of the curfew also 27.The District of Columbia did offer a chart year-olds operating purporting by juveniles seventeen when a motor to document crimes during found, however, scope vehicle. The of this motor vehicle cur hours. district court "woefully that this chart was applies midnight” few is unclear: it "after deficient” it included because crimes mi- challenged, has no termination time. If this curfew, nors not covered was "undated prove problematic. omission could See Na author, Norwich, prepared by ... [and] an unknown prstek City mysteri- under (2d Cir.1976). circumstances that are also ous,” and contained unreliable information. COURTS, 26. See DISTRICT OF COLUMBIA F.Supp. example, at 677. For the chart (1994); 1994 ANNUALREPORT tbl. 31 DIS- suggests juvenile that more crimes were com- COURTS, TRICT OF COLUMBIA 1993 AN- during mitted the 6-8 curfew hours than oth- (1993); NUAL REPORT tbl. 31 DISTRICT OF reliable, er, more data show were committed COURTS, COLUMBIA 1992 ANNUAL RE- during day during the entire 24 hour (1992); PORT tbl. 29 DISTRICT OF COLUM- period. Despite same See id. the district COURTS, BIA 1991 ANNUAL REPORT tbl. rejection court's of this evidence—even after a DISTRICT OF COLUMBIA hearing in which the District of Columbia COURTS, sought 1990 ANNUAL REPORT tbl. 27 to defend it—the decided court has Op. it. credit at 543-44 n.5. thus The curfew at 676. F.Supp. curfew, does See which assessing critical than class of minors larger far of curfew outside burdens crime directly affect be at risk crime or evidentiary responsible defect Again, hours.28 uncon had decid because If D.C. Council merely technical of it. cause than more nationwide, that, for a the curfew indicates benefits of evidence ed that tested prevalent (or is most public victimization class the juvenile of the affected subset around 3-4 hours after-school the during the costs to worth were general) in that violent show FBI statistics and p.m.,29 class, properly defer might the entire court late- the mid- to peaks juvenile crime because But discretion. legislative has discre The D.C. Council afternoon.30 record to indicate virtually no is there prob larger part of only tion to address extent the assessed the D.C. Council a curfew enact lem, and therefore responsible class was the affected which juvenile crime. all not solve if it will even activities, targeted at risk from for or Dukes, 427 U.S. New Orleans hours ages Cf. and targeted whether 49 L.Ed.2d S.Ct. per component of the significant were However, burdening a fundamental before for defer foundation problem, the ceived clear must have a legislature right, consistent This view is evaporates. ence addressing. it is problem of the picture scrutiny, intermediate purpose of with 200-04, 97 S.Ct. Craig, 429 U.S. at restrictive the least require not which does scrutiny, by contrast 451.31 Intermediate gov satisfy important necessary to means review, that a requires basis with rational interests, ju does result but ernmental detail attention to pay more legislature laws that burden of invalidation dicial expended was indicates than the record neces rights than “substantially” more otherwise, case; court cannot the instant Racism, 491 Against v. Rock sary. Ward appropriately if an ordinance determine L.Ed.2d it addresses. See the details tailored to Brown, (1989); Pickett cf. Borough Keyport, Phillips v. 1, 17-18, banc). Cir.1997) Here, (in (3d 164, 174 228-29, 102 Plyler, 457 U.S. gen evidence of a ample had D.C. Council too but far problem, crime juvenile eral prob describing specific fundamen- little evidence did not burden If the curfew in an extraor chose to address lem that it would evidentiary these defects rights, tal way. dinarily ra- burdensome under judicial intervention not warrant Corp. v. scrutiny. See Exxon basis tional evidence that The weakness Maryland, Governor particularly did consider D.C. Council (cita- 2207, 57 L.Ed.2d 91 it did troubling light evidence omitted). an administrative tions Unlike noted, the the district court consider. As explain must generally agency, which showing ignored evidence D.C. Council see promulgates, for the rules not basis juveniles all do than 90% of that more 553(c); Exch. & § Securities crimes, U.S.C. night any otherwise. commit Prevention, Statis- Delinquency 1997. OJJDP age evidentiary problems as to 28. Given http: time, possible Briefing Available: tical Book. I do not deficien- address vic- regard the crime and //ojjdp.ncjrs.org/ojstatbb/qa053.html. cies where with occur. timization appeal, District Columbia 31.On Jeffrey Deposition of A. Butts. 29. See show- obliquely that it has statistics contends during curfew crime high ing a incidence Day Juve- Snyder, "Time 30. See Howard. hours, it conceded district court Violent Likely to Commit Most niles are such did not the D.C. Council consider Adapted Sick- Offenses.” Crime Index 676-77; also F.Supp. at H., See 942 mund, M., data. Poe-Yamagata, Snyder, E. Ju- Testimony Sally Weinbrom Deposition B. Update venile Victims: Offenders at 60. Juvenile Justice Office of on Violence. v. Chenery Corp., Comm’n acted and that interest is only minimally (1943), legisla developed. 87 L.Ed. 626 express tures need not offer rationales Court repeatedly has statutes, rarely and courts scrutinize the that, demonstrated under intermediate legislative process to if determine ade scrutiny, it will not tolerate a severe bur- quate justifies product. evidence its work den aon fundamental right simply because Turner Broad. Sys., U.S. at 195— Cf. legislature has concluded that the law is 96, 117 legislation 1174. But when Rather, necessary. the Court has inde- substantially burdens a pendently examined the evidence before distinction, or relies on a disfavored class legislature to determine whether an judicial scrutiny intensifies to examine adequate justified foundation the chal- scope need for and challenged statutes. lenged example, burdens. For in Craig, See, Habluetzel, e.g., 91, Mills Supreme the Court held that the Okla- 9, 1549, 101 n. 102 S.Ct. legislature homa lacked an adequate basis (1982); Gordon, 762, Trimble v. for permitting women to consume low-alco- 771-72, 1459, 97 S.Ct. 52 L.Ed.2d 31 hol beer at younger age a then men.32 See (1977); Lamprecht, 958 F.2d at 391-92 204, 429 U.S. at 97 S.Ct. 451. The Court Thomas, Justice). (per Circuit In such recognized that the state had legitimate cases, rely state cannot on lawyers the its health, interests traffic safety public through sift the record and evi- cobble 199-200, 451, see id. at 97 S.Ct. but found dentiary posthoc into a shards rationaliza gender the distinction did “closely 7, Craig, tion. U.S. at n. serve[]” these interests. Id. at 451; Taylor, Maine v. 477 U.S. S.Ct. 451. Although proffered the state cf. 91 L.Ed.2d 110 statistics showing that young men were Oklahoma, Hughes likely more than women to be arrested 338 n. 60 L.Ed.2d 250 injured in incidents, alcohol-related traffic (1979). Rather, legislative for a judgment questioned the Court the accuracy of these judicial deference, to warrant there must statistics closely scrutinized the nu- contemporaneous be a factual foundation merical correlations on which the state from which the court can conclude that relied, concluding that provided the data ” there is close a nexus between burden the an “unduly tenuous ‘fit.’ Id. at important fundamental and the Likewise, S.Ct. 451. the Court noted See, state e.g., interest. Turner Broad. the data did not address the “salient” char- Sys. Comm’n, v. Federal Communications acteristics the challenged of be- burden 512 sex, cause it expressly did not age, relate (plurality opinion). consumption specific of type importance The of the District Colum alcohol at issue. See id. at evident, bia’s interest but congru the S.Ct. 451. The looseness of these statis- ence particular the between curfew it en- disturbingly parallel tics is to the eviden- distinguishes 32. Craig attempt court it because the court's Craig by limit the instruction in Supreme hotly reference to the concerned “the contested Court’s and sensitive proving sociological statement "that broad question as to the differences between men business, propositions by statistics is dubious women,” which the court ”[in- deems inevitably and one is in tension the with ]comparable” to the instant case where the philosophy normative that underlies "[pllaintiffs dispute do not that the difference Clause,” Equal Protection 429 U.S. at generally justifies between adults and minors For, S.Ct. admits, no is more successful. it government’s differentiаl of mi- treatment plain- the court must still address the Op. nors....” at 542-43. Yet the court “dispute particular tiffs' [about] differen- forget seems in this section tial [that] interfered] treatment their with analysis, it has assumed that the bur- curfew Op. ‘fundamental’ to free movement.” which, right, dens a given Craig, at 542-43. as well as other intermedi- curfew, by the intrusions renders precedent, ate scrutiny tells the court how to Moreover, “hotly proceed. contested and sensitive.” many too curfew restrains be- whether in the case shortcomings instant tiary light in too severe evidence minors manner lacks record present cause minors charac- for which of crime salient the volume between a connection during time, responsible and violence. age, ages targeted teristics hours. targeted plurality Craig, inAs refused to Broadcasting in Turner Court similarly vigilant has been This court in the “ab- interests which accept that In scrutiny. intermediate applying when jus- “in fact” important could were stract” court, through Cir- writing Lamprecht, burden. 512 tify particular Thomas, gender reviewed cuit Justice Turner, where FCC’s scheme within the preferences a deci- to affirm was asked Supreme Court Recognizing stations. licencing radio opera- require cable Congress to sion judgments policy to the must defer signals, carry local broadcast tors FCC, court never- Congress and the was enti- Congress recognized Court “meaningful evidence” theless demanded deference,” refused tled to “substantial impor- and an the rule link of a between the record because uphold the statute It then F.2d at 393. purpose. tant “genu- aof evidence provided insufficient supporting the statistics went on to dissect the a for creating “need” problem ine” distinction, concluding that gender the imposed. Congress particular burdens solely on the licences ba- awarding women than 2445. Rather Id. at of. goal the did not advance gender sis the “findings,” Court legislative rely on because, among diversity programming of facts development further for remanded reasons, primarily by owned stations other to fulfill permit judiciary the sufficient likely to 1.25 more only times women were independent to exercise “obligation than “women’s programming” broadcast inferences Congress’s test judgment” and id. at by men. See 397. owned stations 666, 114 S.Ct. Id. at the record. against correlation, that this The court concluded rejected statistics also 2445. The Court evidence, was an insufficient and similar they because government the proffered scrutiny. intermediate predicate to survive failed to ad- general or either too were at id. 398. See regula- the the features of dress salient showing statistics example, For tions. affirming other circuits cur- Decisions prevent rules would programming that the contrary methodolo- suggest fews do not ca- dropped from being broadcasters from curfews under review were as the gy, unhelpful because systems ble were upon sturdier evidence. founded consequence the explain whаt did not reviewed a Fourth Circuit Schleifer, the be, there action would whether such on based by Charlottesville curfew enacted difficulty” risk of financial was a “serious problem documenting a crime specific data regulation. broadcasters absent age to the city with reference in that Likewise, 2445. at 114 S.Ct. Id. offenders, the time 159 F.3d at see “paucity” of evidence faulted the Court id., occurrence, place occur- and the see precise burdens describing the Moreover, city rence, at 851. id. operators be- on cable imposed statute the effects of evidence of supplemented pre- evidence of such cause the absence analy- specific cities with curfews other wheth- determining cluded court local circum- relating these studies sis substantially broader were er the burdens greater at This id. 850. stances. See Congress’s achieve necessary to than requisite tailoring established effort at 667-68, 2445. 114 S.Ct. goals. See id. Cir- led the Fourth and thus congruence to the failure is evidentiary similar This is “a the curfew cuit to conclude this court instant problem in the case: real, solving not step towards meaningful to determine sufficient evidence lacks problem.” fanciful Id. By con- 849.33 concluding that the D.C. Council could trast, there is little present basis properly rely experiences on the of New record on which the court may rely to Orleans, Antonio, San and Dallas with ju- make the same statement about the D.C. curfews, venile the court relies on Renton curfew, or to conclude that the curfew is Theatres, v. Playtime Inc., substantially over-restrictive. 52-53, 106 S.Ct. (1986), 89 L.Ed.2d 29 Given the inadequacy of the District’s in which Court acknowledged statistics, all that remains justify scrutiny permits intermediate jur- one curfew are assumptions bare about the isdiction to rely on evidence accumulated demographics of crime and conventional by another addressing a problem. similar political wisdom. Neither is sufficient to Compare City Richmond v. J.A. Croson justify a sweeping restriction of minors’ Co., fundamental right to movement. See Tur- Renton, Yet under ner Sys., Broad. 512 U.S. at city may rely data collected in another 2445 (plurality opinion); Weinberger v. city only long “so as whatever evidence the Wiesenfeld, city upon relies is reasonably believed to (1975); Gault, be relevant to problem city 29-30, 87 S.Ct. 1428. Cleburne Cf. Renton, addresses.” 52-53, 475 U.S. at Ctr., Living 473 U.S. at Indeed, 106 S.Ct. 925. Renton and Se- If the legislature wants to solve attle, city gathered that had the data pressing problems by carving exceptions relied,- on which Renton chose different rights, intermediate scruti- remedies to their problem. common ny requires that use restrained and id. at contrast, By S.Ct. 925. here, blade; delicate the D.C. Council D.C. Council appears to adopted have the sliced broadly with too regard little for Dallas ordinance “wholesale” without available at- evidence. it, tempting to tailor save in a few very Nor can the evidentiary be deficiencies inconsequential ways, to the District’s cir- by overcome looking experiences to the of cumstances. F.Supp. at 678. The cities, other as the court and the District need for substantial tailoring precludes off- of urge. Columbia The experience of oth- the-rack solutions on the present scale er cities with law may enforcement tools Renton, 52-53, here. See 475 U.S. at be relevant may provide and useful infor- Renton’s, Thus, S.Ct. 925. while reasoning mation to inform the D.C. deci- Council’s applicable, be sions. But the D.C. Council this is not the failed same as saying that the tools to establish a used other fit cities can between circum- be local imported without of consideration the stances the borrowed ordinance and characteristics of the two In communities. data.34 opinion

33. The of affirming addition, the Fifth Circuit 34. In analogy may the Renton be the Dallas curfew likewise suggests inapt that Dal- to the present extent curfews more presented las more evidence complex than the District questions, and are thus more in need case, presented has in the including instant tailoring peculiarities, to local than the statistical ages data that the Moreover, fit zoning covered at issue in Renton. Renton curfew, offenses, places time of and the city involved borrowing one from anoth- data occurred, Qutb, they at F.3d al- er when it any could not have collected data though opinion own, provide enough does not of its prevent problem effort an to detail to conclude whether the court yet exercised that had not arisen. See scope 50-51, Craig of review that and other cases Forcing 106 S.Ct. 925. Renton to however, significance, demand. It is of some develop local data would have extraordi- been that this was the second narily time that the Fifth in an (zoning) burdensome area lawof curfew, Circuit juvenile had considered over which cities have substantial discretion. opinion its contrast, indicates that the deficiencies that In the District of Columbia had am- the court previously had ple opportunities identified the first to examine own local curfew had been rectified. id. at juvenile problem light crime local demo- measures, well- well as as enforcement for no substitute can be efficacy Finally, paternalism, government at 544. Op. intentioned scrutiny. See constitutional rights politi- their readily arrests defend cannot the decline Assuming legislative challenges hours demon- during curfew fora. When cal juveniles during courts falls to the effectiveness it presented, curfew’s reforms are strates operation, period re- three-month branches political its brief ensure alone cannot curfew efficacy as exercise even spect minors’ infirmity.35 it from constitutional save to assess discretion considerable their juvenile nocturnal that well-enforced fact face in the interests minors’ best promote surprising; hardly reduce crime Gault, curfews See, e.g., threаts. pervasive public injure readily cannot minors court 1428. The But it. mingle with permitted when not that intermediate concludes appropriately adult a nocturnal clear equally it is important serves scrutiny best crime, as would also reduce would curfew funda- protecting judicial role limited present juvenile 'extending deferring delicate rights while mental options Yet day.36 both the entire cover such Applying judgments. legislative extreme, the same and raise would hand, the court the record scrutiny to whether instant case: as the question falters, however, to finesse attempting rem- of Columbia’s severity of the District scru- by intermediate required congruence relation by a substantial warranted edy is dissent, respectfully I Accordingly, tiny. A court review- important interest. to an a record that in absence concluding substitute curfew could not adult ing an curfew does warranting deference constitutional proxy effectiveness that ac- scrutiny heightened survive the must court likewise and this propriety, minors’ places on the burdens companies any attractiveness b.eyond apparent look free movement. right to if it a constitu- to determine the curfew legislative acceptable exercise of tionally TATEL, dissenting: Judge, Circuit authority. the Dis Judge Rogers that I with agree by re- punctuated time too-often f impli juvenile curfew o Columbia trict un- violence and youth ports of senseless move to free cates a fundamental death, lives lost to promising timely and of defined that the should streets, ment and mi- familiar vices of sadly right- age to the regard law without of ambitious easy targets nors are curfew during period in which the Requiring fell graphics and resources. available effect, appears to contin- it also have tailoring therefore not was in evidentiary here would re- district permissive significantly even after the the more fall with ued to be inconsistent curfew. enjoined enforcement sult Renton. court Matthews, “Lives of D.C. Children Jay See statistics, Op. at Relying on arrest see 35. Post, finds,” Sep- Washington Study Improve, often do misleading because arrests can be (citing the Fifth section Metro tember offenses, contemporaneously with not occur this report). While Kids D.C. Count Annual during periods— will decline presumably possibility that the preclude the may not data potential arres- as curfew such hours —when great- might precipitated an even have curfew example, the public. For out tees force, does it it remained er had decline fugitive minors arrests led to fewer curfew the de- court's inference that undermine carrying weapons, but this does and minors peri- during the crime curfew juvenile cline in the number that the curfew reduced not mean curfew. od attributable weapons offenders liv- fugitives or juvenile Seemingly city. relevant in ing more encompass Extending the curfew 36. D.C. would be assessing effectiveness the curfew’s hours) may (other day than school the entire during curfew juvenile fell crime whether at oral hyрothetical, fanciful seem like hours, juvenile increased crime and whether con- the United States argument counsel for district during hours after non-curfew ra- lines, would survive such' a curfew tended that Along injunction. these court's scrutiny. tional basis juvenile while crime interesting to note Rogers holder. Al Op. See 554-59. minors entrusted to their care.” D.C.Code though I still believe that 6-2181(e)(3) the curfew § (Supp.1998). As Chief Ann. subject should be to strict scrutiny and Judge Edwards and Judge Silberman ob- that the compelling prong interest serve, moreover, the law contains several analysis can adequately account for “the “defenses” that to some extent preserve government’s legitimate need to regulate parents’ control over their children’s activi- minors,” Columbia, Hutchins v. District ties. Silberman Op. at 545-46 (citing (D.C.Cir.1998) (Tatel, J., F.3d D.C.Code§ 6-2183(b)(l)(A), (B), (D), (E), in the concurring judgment), join I Judge (G)); (same). Op. Edwards at 551-52 Rogers’s conclusion that this curfew fails Restating the legislative judgment to survive even scrutiny. intermediate “the curfew facilitates rather than usurps nearly Modeled juve verbatim on a Dallas parental authority,” Op. Silberman at 545- nile “without apparent determina 46, however, does not plaintiffs’ answer tion that circumstances here ex warranted assertion of parental rights. Whatever actly solution,” the same Rogers atOp. views judges court, of this members of 553, and permanent made by the D.C. Council, the D.C. or even majority Council any without assessment of ef D.C. parents may have regarding the simply to fectiveness avoid mooting this range of discretion needed for proper par- litigation when the temporary initial mea enting, the relevant fact is that plaintiffs expired, Hutchins, sure see 144 F.3d at in this case disagree. In their complaint, (Tatel, J., in the concurring judgment), ¶ ¶ 5, 8, see Complaint 10, 16, 33, 43, and applies D.C. curfew specific times affidavits, uncontroverted they claim that juveniles specific ages despite virtually the curfew interferes with their ability to no record evidence that particular re raise their children For fit. strictions will deter crime and against example, Kimberly Dean, Denise a plaintiff the city’s youth. See Rogers Op. at 565 who lives Northeast Washington, said Indeed, conclude this record this: juvenile that the curfew survives interme I am the mother Natiya Daniel diate scrutiny, does, as this court now Tapper, old, who is 14 years subject strips an already any elastic standard of to the District of Columbia’s new curfew heightened review, semblance of with law. I have child, Qiana grave one other consequences for other pro Dean, Shontay years tected who is 17 old. scrutiny. intermediate See Mis sissippi Univ. Hogan, Women v. I have taken great care to my raise 102 daughters hope they grow up will Craig Boren, be responsible adults. Naturally, I setting includes limits activities, on their write separately express to my view that such as hours they which should inbe quite apart from question the of its consti However, at night. law, the curfew [sic] tutionality respect with to the rights of away my parental takes discretion tо set minors, D.C. curfew fails to survive responsible those limits. As a parent, I strict scrutiny triggered by the restriction do not often my allow fourteen-year-old imposes parents’ fundamental right to child, Natiya, go to out p.m. after 11:00 control upbringing of their children. However, there are times when I decide after careful

I know consideration many parents she believe that should be participate allowed curfew to in activi- reinforces their efforts to en- ties that require sure their her to be safety children’s out after proper up- and Indeed, p.m. bringing. 11:00 one curfew’s stat- purposes

ed is to parents instance, ] “[a]id[ or For last IMay allowed Nati- guardians carrying in responsibil- out their ya Qiana help to celebrate her seven- ity to exercise supervision reasonable birthday. Qiana, teenth Natiya and a us, as our as well make to it threatens ate dinner girlfriends Qiana’s

couple paren- children, if exercise criminals we late-movie, restaurant, saw local at a customary, reasonable tal discretion with the celebration completed then and ways. did daughters My early breakfast. an ¶ 2 a.m. until after 423-24]. home 3 [JA not arrive Decl. Jablon family dog could walking if Even cur- school, under the high as an “errand” be in Natiya will classified Soon 651-52, sister, Op. at defenses, that, she see Edwards like her expect few’s I and allow would the law reading social ac- fair involved no more become will during their children permit out keep her late to parents will tivities birthday in a participate decisions hours to make wise try to curfew I will night. a friend’s to engage ride bike Natiya or to allow celebration about whether eliminates likewise time comes. The curfew house. when these activities stand, will allow their children law, if allowed to discretion parents’ curfew through the jog early-morning so- Natiya’s legitimate an to take unfairly restrict with interests, restaurant go as well as to a neighborhood, and activities cial dance, way or—as a school Natiya after raise friends ability to my argument “go at oral conceded fit. District I see — math home- to do house to a friend’s out ¶ ¶ 2-4, Anoth- 402-03]. 6 [JA Decl. Dean adult. by an unaccompanied night” work at of Northwest Jablon plaintiff, er Robert law D.C. makes at 17. The Arg. Tr. Oral Washington, said: their who consent parents criminals of care great I have taken and My wife during curfew participation children’s so that our children try to raise social, education- range in a wide hours responsible into hope grow will—we — ál, activities —non-crimi- and recreational teaching part [J]ust adults.... (however parents some activities that nal in- responsible behavior children about consider many) few limits, of that teach- part setting volves well-being. growth children’s their showing them involves also ing (d) 2183(a)(2), (providing D.C.Codb§ 6— that reasonable rigid, and are not rules penalties). and criminal enforcement when there be made exceptions should “[t]he Thus, disagree do I only wife Accordingly, my justification. good almоst parents allow the curfew’s defenses eleven-year-old son] I allow [our activi their children’s time, over discretion time to total late stay out Joel to hours,” Op. Silberman during curfew ties morning, when early go out or to 545-46, squarely I think the appropriate rea- is an in our view there “liberty of implicates well-established allow regularly example, we For son. up to direct guardians parents family dog, to walk our Joel our son under of children and education bringing going to Calle, block before around Sisters, Society Pierce v. control.” mid- be after their which could night, bed 6:00 268 or before the summer during night Supreme Court- As the L.Ed. ride Joel to also allowed We have a.m. Yoder, history “The in Wisconsin neighborhood stated from a bike to his reflect Western civilization culture of away and blocks four or five house friend’s concern for parental of strong tradition attend movie invited to Joel is when their children. of upbringing nurture midnight on a home return after and to in the parents role of the primary in This during or week night weekend estab is now their children par- upbringing role usurps It our summer.... enduring as an debate beyond step and lished government to for the ents 205, 232, 92 U.S. 406 tradition.” American that we cannot our children us and tell (1972). See 1526, 15 L.Ed.2d ourselves, 32 and S.Ct. for those make decisions

573 Nebraska, Meyer 43 “primary role” child-rearing as “an en- 625, S.Ct. 67 L.Ed. 1042 see also during American tradition” reflected its “ Baird, 622, Bellotti v. 639 n. recognition that ‘[t]he fundamental theo- 61 (opin- L.Ed.2d ry of liberty upon which all governments in Powell, J.); Illinois, ion of Stanley v. 405 this repose Union any general excludes U.S. power L.Ed.2d of the State to standardize its chil- dren. ...’” U.S. Pierce, 1526 (quoting 268 U.S. at State interference with this long-recog- 571). Indeed, we refuse to regard nized parental right to raise children de- “[t]he child [as] mere creature of the judicial mands strict scrutiny. It is in the state,” Pierce, 268 U.S. at context of family, addition to school and 571, because particular insistence on a the- institutions, other societal that children of ory of parenting, like sponsor- “affirmative this diverse and democratic nation begin ship particular ethical, religious, po- develop habits of responsibility necessary beliefs!,] litical is something we expect the for self-governance and to observe not only State attempt not to in a society constitu- the formal rules established govern- tionally committed ideal of individu- ment but also the informal rules and un- al liberty choice,” Bellotti, freedom of derstandings that undergird civil society. (opinion S.Ct. 3035 Through parents, children first learn to J.). Powell, course, Of this does not mean relate consequences, conduct to to exercise that Ms. Dean’s and Mr. authority Jablon’s freedom with responsibility, and to respect to raise their children impervious is the views of others. Ms. Dean’s and Mr. state regulation. It does mean that to be Jablon’s affidavits describe precisely that valid, limitations on parental process: They are attempting to teach only must seek to achieve compelling ob- their children the way they best, think (which jectives juvenile the D.C. curfew granting them more they freedom when does), also must demonstrate close demonstrate responsibility. As Justice fit—substantiated record evidence —be- “[tjhis said, Powell process affirmative (which tween means and ends teaching, guiding, and inspiring by precept not). does and example is essential to growth young mature, people into socially respon- Relying Massachusetts, Prince v. Bellotti, sible citizens.” 443 U.S. at (1944), 88 L.Ed. 645 J.). (opinion Powell, S.Ct. 3035 argues parental District authority parenting process described by Justice in child-rearing implicates no fundamental very process Powell—the that the curfew right subject regula- reasonable plaintiffs curtails for these es- likewise —is sure, Prince, tion. beTo which was decid- sential, view, my to equipping young ed before the modern three-tier frame- people with the confidence need work for reviewing equal protection and resist the many destructive influences of claims, fundamental rights said that “the society. Schools and governmental other state has wide range power limit- for institutions, sure, to be indispensable ing parental freedom and authority in to this learning process. Parents, howev- things affecting the child’swelfare.” Id. at er, retain a critical role because “[w]e have Prince, 64 S.Ct. 438. But as I read believed in this country that process, stands not for the proposition broad in large part, beyond competence regulations reasonable state may override impersonal political institutions.” Id. parental judgments on matters of child

Heightened constitutional protection welfare, but for the now-settled principle parental autonomy is required for that religious another practices may be circum- Yoder, reason. the Supreme by reasonable, Court’s scribed neutral of gen- laws unqualified parents’ characterization of eral applicability. Smith, v. Resources Div., Human Dep’t Je- of a the conviction sustained of Prince 1595, 879, 872, 110 S.Ct. a Massachusetts under Witness hovah’s States nine-year- her United allowing (quoting law for L.Ed.2d child labor magazines 3, religious 252, 102 S.Ct. 263 n. Lee, niece to distribute old issue Characterizing the J., (1982) (Stevens, the street. 1051, 71 L.Ed.2d opening para- Court, Prince’s before the id. at see judgment)); the concurring in brings for review case “The graph states: (characterizing Prince 880, 110 S.Ct. between in the conflict episode another infirmity in finding “no constitutional as authority. and state Witnesses Jehovah’s doing from children] ‘excluding [these con- from appeals Prince Sarah This time ”) do’ children no other what there child violating Massachusetts’ for victions 171, Prince, 64 S.Ct. at (quoting a rightful laws, said to by acts labor approach 438). different Explaining the Id. religious convictions.” her of exercise Yoder, where the in Wisconsin taken words, other In 159, 64 S.Ct. at merely a ‘rea “more than demanded Court niece, her to right allow Prince claimed within purpose to some relation sonable maga- newsgirl of a the ply to tradе not ” holding in State’ competency the engage to seller, proselytize, to zine inappli laws compulsory school attendance at religion.” Id. of proclaiming public “the who refused parents to Amish cable 164, 438; 64 S.Ct. id. at see school, 406 U.S. at their children send par- “the Prince claimed (stating that Smith, 494 quoted the up child in bring the [liberty] to ent’s 1, 110 said Smith at 881 n. appellant U.S. which way go, he should for exer only free the not implicated tenets Yoder to teach him means added). (emphasis parents, ac faith”) of right their “the practices but also cise of maga- her niece Prince’s offered ..., Although to direct the in Pierce knowledged technically copy,” thus per zines for children,” “5<t at id. their of education the child labor under conduct her bringing that a makes clear thus 1595. Smith “received she law, the Court observed rights ele parental of assertion square the offenses money” evening on the no applicable to review of the standard vates occurred, at id. subject to claim otherwise a free exercise generally small sums “specified while (“The only id. scrutiny. See basis rational received!,] publications ... asked and that the have held in which we decisions if so payment had without may be of application Amendment bars First As desired,” n. 64 S.Ct. 438. id. to reli neutral, law applicable generally be- analogy decision’s suggested have involved action motivated giously vaccina- compulsory child labor tween alone, but the Exercise Clause Free is thus laws, Prince id. tion conjunction with Clause Exercise Free labor” nor “child a case about neither such protections, constitutional other paren- trump power state vindication ”). light [parental rights].... ... free exer- limiting but a case authority, tal District’s Smith, I am unconvinced otherwise in the face of religion cise of proposition on Prince reliance regulation. state valid parental applies review rational basis view, Confirming no doubt leaves claims. Smith line Prince recently situated Court Prince, like the law labor if the child right free that “the establishing cases in Yo- law school attendance compulsory an individual not reheve does exercise implicated parental der, genuinely had a ‘valid comply with obligation of free exer distinct applicability on general law neutral scruti cise, heightened form then some (or pre- proscribes law ground Smith, 494 applied. have ny should scribes) pre- religion that his conduct ” 1595; City accord (or Employment proscribes).’ scribes Flores, Boernenv. 507, -, 117 liberty under either strict or intermediate scrutiny, the method it chose so plainly stated, lacks an evidentiary link to the goal sum, inquiry triggered by plain- it fails the tailoring prong of both tiffs’ claim of a fundamental right strict and scrutiny. intermediate whether the curfew on the helps whole ‍​​​​​​‌​‌‌​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​​​​​​‌​​​‌‌​‌‌‌‌​‌‍Hutchins, 144 F.3d at (Tatel, J., 826-27 parental hinders control—that is a policy concurring in the judgment); Rogers question lawmakers, Op. for D.C. not federal at 565-70. I dissent. judges respectfully rather whether the District —but provided has justification sufficient for im- posing particular paren- restrictions on

tal control to which plaintiffs these object.

On this question, I by my stand view

although goal the District’s of reducing

crime against juveniles important

enough to justify restrictions on parental

Case Details

Case Name: Hutchins v. District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 22, 1998

Citation: 188 F.3d 531

Docket Number: 96-7239

Court Abbreviation: D.C. Cir.