Elizаbeth QUTB, Individually and as next friend of Sabrina Qutb, et al., Plaintiffs-Appellees, v. Annette STRAUSS, Mayor of the City of Dallas, TX, et al., Defendants, v. Steve BARTLETT, Mayor of the City of Dallas, TX, et al., Defendants-Appellants.
No. 92-1707.
United States Court of Appeals, Fifth Circuit.
Nov. 19, 1993.
11 F.3d 488
Accepting the inmates’ claim that Virginia‘s system of awarding good conduct credit created a liberty interest protected by the Fourteenth Amendment, see Wolff, 418 U.S. at 557, 94 S.Ct. at 2975, we are nevertheless satisfied that the amended version of DOP 861 provides due process and more when credits are withdrawn. See DOP 861 7.6-1 (procedures for filing disciplinary report of an offense and giving notice to inmate of change); 7.7-1 (requiring prison official to meet with inmate to discuss change and inform him of his rights); 7.7-2 (requiring the recordation of the inmate‘s election of rights, including the right to an advisor during the hearing on the charge, аnd the right to call witnesses, and requiring that the inmate be given a written copy of the charge); 7.17-1 (requiring that disciplinary report contain summary of evidence presented, and written findings of basis for decision and penalty); 7.19 (requiring that inmate be given two copies of disciplinary report as soon after institutional review is completed as possible). Therefore, the regulations adopted to establish penalties for the refusal by an inmate to provide blood samples do not violate the Fourteenth Amendment.
III
For the reasons that we have stated in Jones v. Murray, 962 F.2d 302 (1992), and that we give here, we affirm the judgment of the district court.
AFFIRMED.
Richard E. Henderson, Karen Anderson, Asst. City Attys., Ft. Worth, TX, for amicus curiae City of Ft. Worth.
Elaine Sue Hengen, Asst. City Atty., El Paso, TX, for amicus curiae City of El Paso.
Tona Trollinger, Dallas Civ. Liberties Union Foundation, Emmett Colvin, Richard F.
Before KING and JOLLY, Circuit Judges, and PARKER, District Judge.**
E. GRADY JOLLY, Circuit Judge:
This appeal presents a challenge to the constitutionality of a nocturnal juvenile curfew ordinance enacted by Dallas, Texas. The ordinance makes it a misdemeanor for persons under the age of seventeen to use the city streets or to be present at other public places within the city between certain hours.1 Several plaintiffs brought suit against the city to strike down the ordinance. The district court ruled for the plaintiffs, holding that the ordinance violated both the United States and the Texas Constitutions, and permanently enjoined enforcement of the ordinance. The city appeals. Because we conclude that this ordinance does not violate the United States or Texas Constitutions, we reverse the district court.
I
On June 12, 1991, in response to citizens’ demands for protection of the city‘s youth, the Dallas City Council enacted a juvenile curfew ordinance. This ordinance prohibits persons under seventeen years of age2 from remaining in a public place or establishment from 11 p.m. until 6 a.m. on week nights, and from 12 midnight until 6 a.m. on weekends. As defined by the ordinance, a “public place” is any place to which the public or a substantial group of the public has access, and includes streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. “Establishment” is defined as “any privately-owned place of business operated for a profit to which the public is invited, including but not limited tо any place of amusement or entertainment.”
Although the ordinance restricts the hours when minors are allowed in public areas, the ordinance also contains a number of exceptions, or defenses. A person under the age of seventeen in a public place during curfew hours does not violate the ordinance if he or she is accompanied by a parent3 or guardian, or is on an errand for a parent or guardian. Likewise, minors would be allowed in public places if they are in a motor vehicle travelling to or from a place of employment, or if they are involved in employment related activities. Affected minors could attend school, religious, or civic organizational functions—or generally exercise their First Amendment speech and associational rights—without violating the ordinance. Nor is it a violation to engage in interstate travel, or remain on a sidewalk in front of the minor‘s home, or the home of a neighbor. And finally, the ordinance places no restrictions on a minor‘s ability to move about during curfew hours in the case of an emergency.
A minor violates the curfew if he or she remains in any public place or on the premises of any establishment during curfew hours, and if the minors’ activities are not exempted from coverage. If a minor is apparently violating the ordinance, the ordinance requires police officers to ask the age of the apparent offender, and to inquire into the reasons for being in a public place during
Like minors who have violated the offense, a parent of a minor, or an owner, operator, or employee of a business establishment is also subject to a fine not to exceed $500 for each separate offense. A parent or guardian of a minor violates the ordinance if he or she knowingly permits, or by insufficient control allows, a minor child to remain in any public place or on the premises of any establishment during сurfew hours. An owner, operator, or employee of a business establishment commits an offense by knowingly allowing a minor to remain upon the premises of the establishment during curfew hours.
II
On July 3, 1991, two weeks after the ordinance was enacted, Elizabeth Qutb and three other parents filed suit—both individually and as next friends of their teenage children—seeking a temporary restraining order and a permanent injunction against the enforcement of the juvenile curfew ordinance on the basis that the ordinance is unconstitutional.4 The district court certified the plaintiffs as a class that consisted of two subclasses: persons under the age of seventeen, and parents of persons under the age of seventeen. One week later, the court advanced the trial on the merits, and consоlidated the trial with the hearing on the plaintiffs’ request for temporary and permanent injunctions. The case was tried on July 22-23, and the district court denied the plaintiffs’ request for a temporary injunction. The city, however, voluntarily delayed enforcement of the curfew pending the district court‘s decision on the merits.
On June 12, 1992, before the district court issued its final order on the merits of the case, the city voluntarily amended the curfew ordinance. The amended ordinance deleted or altered some of the provisions of which the plaintiffs complained, while expanding some of the defenses available to affected minors. In response to the revised ordinance, the plaintiffs filed an amended complaint and an amended motion for a permanent injunction against еnforcement of the curfew. The district court held a second evidentiary hearing, where both parties presented additional evidence and arguments concerning validity of the revised ordinance under the United States and Texas constitutions. On August 10, 1992, the district court held that the curfew impermissibly restricted minors’ First Amendment right to associate, and that it created classifications that could not withstand constitutional scrutiny.5 Accordingly, the district court permanently enjoined enforcement of the curfew, and the city now appeals.
III
A
We review de novo the district court‘s conclusions of constitutional law. Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1213 (5th Cir.1991); Shillingford v. Holmes, 634 F.2d 263, 266 (5th Cir.1981). The minor plaintiffs argue,
Under the Equal Protection analysis, we apply different standards of review depending upon the right or classification involved. If a classification disadvantages a “suspect class” or impinges upon a “fundamental right,” the ordinance is subject to strict scrutiny. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982). Under the strict scrutiny standard, we accord the classification nо presumption of constitutionality. Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1059 (5th Cir.1984). Instead, we ask whether the classification promotes a compelling governmental interest and, if so, whether the ordinance is narrowly tailored such that there are no less restrictive means available to effectuate the desired end. Pugh v. Rainwater, 557 F.2d 1189, 1195 (5th Cir.1977), vacated on other grounds, 572 F.2d 1053 (5th Cir.1978).
In this case, no one has argued, and correctly so, that a classification based on age is a suspect classification. See Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S.Ct. 2395, 2406, 115 L.Ed.2d 410 (1991) (holding that age is not a suspect class). The minor plaintiffs, however, have argued that the curfew ordinance impinges upon their “fundamental right” to move about freely in public. For purposes of our analysis, we assume without deciding that the right to move about freely is a fundamental right. We are mindful, however, that this ordinance is directed solely at the activities оf juveniles and, under certain circumstances, minors may be treated differently from adults.6
B
Because we assume that the curfew impinges upon a fundamental right, we will now subject the ordinance to strict scrutiny review. As stated earlier, to survive strict scrutiny, a classification created by the ordinance must promote a compelling governmental interest, and it must be narrowly tailored to achieve this interest. Plyler v. Doe, 457 U.S. at 216-17, 102 S.Ct. at 2394-95. The city‘s stated interest in enacting the ordinance is to reduce juvenile crime and victimization, while promoting juvenile safety and well-being. The Supreme Court has recognized that the state “has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 2942, 111 L.Ed.2d 344 (1990). In this case, the plaintiffs сoncede and the district court held that the state‘s interest in this case is compelling. Given the fact that the state‘s interest is elevated by the minority status of the affected persons, we have no difficulty agreeing with the parties and with the district court.
In the light of the state‘s compelling interest in increasing juvenile safety and decreasing juvenile crime, we must now determine whether the curfew ordinance is narrowly tailored to achieve that interest. The district court held that the city “totally failed to establish that the Ordinance‘s classification between minors and non-minors is narrowly tailored to achieve the stated goals of the curfew.” We disagree.
To be narrowly tailored, there must be a nexus between the stated government interest and the classification created by the ordinаnce. City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 493, 109 S.Ct. 706, 721, 102 L.Ed.2d 854 (1989). This test “ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate....” Id.
The articulated purpose of the curfew ordinance enacted by the city of Dallas is to protect juveniles from harm, and to reduce juvenile crime and violence occurring in the city. The ordinance‘s distinction based upon age furthers these objectives. Before the district court, the city presented the following statistical information:
- Juvenile crime increases proportionally with age between ten years old and sixteen years old.
- In 1989, Dallas recorded 5,160 juvenile arrests, while in 1990 there were 5,425 juvenile arrests. In 1990 there were forty murders, ninety-one sex offenses, 233 robberies, and 230 aggravated assаults committed by juveniles. From January 1991 through April 1991, juveniles were arrested for twenty-one murders, thirty sex offenses, 128 robberies, 107 aggravated assaults, and 1,042 crimes against property.
- Murders are most likely to occur between 10:00 p.m. and 1:00 a.m. and most likely to occur in apartments and apartment parking lots and streets and highways.
- Aggravated assaults are most likely to occur between 11:00 p.m. and 1:00 a.m.
- Rapes are most likely to occur between 1:00 a.m. and 3:00 a.m. and sixteen percent of rapes occur on public streets and highways.
- Thirty-one percent of robberies occur on streets and highways.
Although the city was unable to provide precise data concerning the number of juveniles who commit crimes during the curfew hours, or the number of juvenile victims of crimes committed during the curfew, the city nonеtheless provided sufficient data to demonstrate that the classification created by the ordinance “fits” the state‘s compelling interest.7
Furthermore, we are convinced that this curfew ordinance also employs the least restrictive means of accomplishing its goals. The ordinance contains various “defenses” that allow affected minors to remain in public areas during curfew hours. Although the district court concluded that “[i]t is what the Ordinance restricts and not what it exempts that matters the most,” it is clear to us that neither the restrictions of the curfew ordinance nor its defenses can be viewed in isolation from each other; the ordinance can be examined fairly only when the defenses are considered as a part of the whole. To be sure, the defenses are the most important
In the past, curfew ordinances have been held unconstitutional because of their broad general applications. In Johnson v. City of Opelousas, 658 F.2d 1065, 1074 (5th Cir.1981), for example, we addressed a juvenile curfew ordinance and declared it unconstitutional; our holding, however, was “expressly limited to the unconstitutional overbreadth of the ordinance.” Johnson v. City of Opelousas, 658 F.2d 1065, 1074 (5th Cir.1981). Furthermore, we stated that “[w]e express no opinion on validity of curfew ordinances narrowly drawn to accomplish proper social objectives.” Id. at 1072. In declaring the Johnson ordinance to be an undue burden on the rights of minors, we noted that:
[U]nder this curfew ordinance minors are prohibited from attending associational activities such as religious or school meetings, organized dances, and theater and sporting events, when reasonable and direct travel to or from these activities has to be made during the curfew period. The same inhibition prohibits parents from urging and consenting to such protected associational activity by their minor children. The curfew ordinance also prohibits a minor during the curfew period from, for example, being on the sidewalk in front of his house, engaging in legitimate employment, or traveling through [the city] even on an interstate trip. These implicit prohibitions of the curfew ordinance overtly and manifestly infringe upon the constitutional rights of minors in [the city].
Id. We therefore concluded that the “curfew ordinance, however valid might be a narrowly drawn curfew to protect society‘s valid interests, [swept] within its ambit a number of innocent activities which are constitutionally protected.” Id. at 1074 (emphasis added). In Johnson, we further stated that
[r]egardless of the legitimacy of [the city‘s] stated purposes of protecting youths, reducing nocturnal juvenile crime, and promoting parental control over their children, less drastic means are available for achieving these goals. Since the absence of exceptions in the curfew ordinance precludes a narrowing construction, we are compelled to rule that the ordinance is constitutionally overbroad.
Id. (emphasis added).
With the ordinance before us today, the city of Dallas has created a nocturnal juvenile curfew that satisfies strict scrutiny. By including the defenses to a violation of the ordinance, the city has enacted a narrowly drawn ordinance that allows the city to meet its statеd goals8 while respecting the rights of the affected minors. As the city points out, a juvenile may move about freely in Dallas if accompanied by a parent or a guardian, or a person at least eighteen years of age who is authorized by a parent or guardian to have custody of the minor. If the juvenile is traveling interstate, returning from a school-sponsored function, a civic organization-sponsored function, or a religious function, or going home after work, the ordinance does not apply. If the juvenile is on an errand for his or her parent or guardian, the ordinance does not apply. If the juvenile is involved in an emergency, the ordinance does not apply. If the juvenile is on a sidewalk in front of his or her home or the home of a neighbor, the ordinance does not apply. Most notably, if the juvenile is exercising his or her First Amendment rights, the curfew ordinance does not apply.
Against the ordinance‘s an expansive list of defenses, the district court attempted to pro-
With due respect to the able district court, we are convinced that upon examination its analysis collapses. It is true, of course, that the curfew ordinance would restrict some late-night activities of juveniles; if indeed it did not, then there would be no purpose in enacting it. But when balanced with the compelling interest sought to be addressed—protecting juveniles and preventing juvenile crime—the impositions are minor. The district court failed to observe that none of the activities it listed are restricted if the juvenile is accompanied by a parent or a guardian. Even if the child is unaccompanied by a parent or a guardian, we can presume that most events such as a “midnight basketball league” or a church youth group outing ordinarily would be organized, sponsored or supervised by an adult or an organization, and these are exceptions to the curfew. Although it is true that in some situations unaccompanied juveniles may be forced to attend early evening features of a movie or leave a play or concert before its conclusion, this imposition is ameliorated by several of the ordinance‘s defenses so that the juvenile is not deprived of actually attending such cultural and entertainment opportunities. Furthermore, а juvenile can take an “innocent stroll” and stare at the stars until 11:00 on week-nights and until 12:00 midnight on weekends; indeed, a juvenile may stare at the stars all night long from the front sidewalk of his or her home or the home of a neighbor. Thus, after carefully examining the juvenile curfew ordinance enacted by the city of Dallas, we conclude that it is narrowly tailored to address the city‘s compelling interest and any burden this ordinance places upon minors’ constitutional rights will be minimal.9
D
In addition to the claims presented by the minor plaintiffs, the parental plaintiffs argue that the curfew ordinance violates their fundamental right of privacy because it dictates the manner in which their children must be raised. Although we recognize that a parent‘s right to rear their children without undue governmental interference is a fundamental component of due process, see, e.g., Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1279, 20 L.Ed.2d 195 (1968), we are convinced that this ordinance presents only a minimal intrusion into the parents’ rights. In fact, the only aspect of parenting that this ordinance bears upon is the parents’ right to allow the minor to remain in public places, unaccompanied by a parent or guardian or other authorized person, during the hours restricted by the
In this case, the parents have failed to convince us that the ordinance will impermissibly impinge on their rights as parents. The parents’ only “evidence” to support their argument is the testimony of the mother of one of the plaintiffs that her daughter would soon be going to college, and the curfew ordinance—applying only between 11 p.m. and 6 a.m.—would somehow deprive her daughter of the opportunity to learn to manage her time and make decisions before going away to college. Certainly this testimony is insufficient to support the district court‘s finding that the ordinance unconstitutionally infringed the liberty and privacy interests of parents.10
IV
In conclusion, we find that the state has demonstrated that the curfew ordinance furthers a compelling state interest, i.e., protecting juveniles from crime on the streets. We further conclude that the ordinance is narrowly tailored to achieve this compelling state interest.11 Accordingly, we hold that the nocturnal juvenile curfew ordinance enacted by the city of Dallas is constitutional.
The judgment of the district court is therefore
REVERSED.
KING, Circuit Judge, concurs in the result.
I concur in the result reached by the majority without expressing a view on the method by which the majority has reached that result.
APPENDIX
ORDINANCE NO. 21309
An ordinance amending Sections 31-33, “Curfew Hours for Minors,” of CHAPTER 31, “OFFENSES-MISCELLANEOUS,” of the Dallas City Code, as amended; repealing Section 2 of Ordinance No. 20966; defining terms; creating offenses for minors, parents and guardians of minors, and business establishments violating curfew regulations; providing defenses; providing for enforcement by the police department; providing for waiver by the municipal court of jurisdiction over a minor when required under the Texas Family Code; providing for review of this ordinance in lieu of Ordinance No. 20966 within six months after the date of initial enforcement; providing a penalty not to exceed $500; providing a saving clause; providing a severability clause; and providing an effective date.
WHEREAS, the city council has determined that there has been an increase in juvenile violence, juvenile gang activity, and crime by persons under the age of 17 in the city of Dallas; and
WHEREAS, persons under the age of 17 are particularly susceptible by their lack of maturity and experience to participate in unlawful and gang-related activities and to be victims of older perpetrators of crime; and
WHEREAS, the city of Dallas has an obligation to provide for the protection of minors from each other and from other persons, for
WHEREAS, a curfew for those under the age of 17 will be in the interest of the public health, safety, and general welfare and will help to attain the foregoing objectives and to diminish the undesirable impаct of such conduct on the citizens of the city of Dallas; Now, Therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS:
SECTION 1. That Section 31-33, “Curfew Hours for Minors,” of CHAPTER 31, “OFFENSES-MISCELLANEOUS,” of the Dallas City Code, as amended, is amended to read as follows:
“SEC. 31-33. CURFEW HOURS FOR MINORS.
(a) Definitions. In this section:
(1) CURFEW HOURS means:
(A) 11:00 p.m. on any Sunday, Monday, Tuesday, Wednesday, or Thursday until 6:00 a.m. of the following day; and
(B) 12:01 a.m. until 6:00 a.m. on any Saturday or Sunday.
(2) EMERGENCY means an unforeseen combination of circumstances or the resulting state that calls for immediate action. The term includes, but is not limited to, a fire, a natural disaster, or automobile accident, or any situation requiring immediate action to prevent serious bodily injury or loss of life.
(3) ESTABLISHMENT means any privately-owned place of business operated for a profit to which the public is invited, including but not limited to any place of amusement or entertainment.
(4) GUARDIAN means:
(A) a person who, under court order, is the guardian of the person оf a minor; or
(b) a public or private agency with whom a minor has been placed by a court.
(5) MINOR means any person under 17 years of age.
(6) OPERATOR means any individual, firm, association, partnership, or corporation operating, managing, or conducting any establishment. The term includes the members or partners of an association or partnership and the officers of a corporation.
(7) PARENT means a person who is:
(A) a natural parent, adoptive parent, or step-parent of another person; or
(B) at least 18 years of age and authorized by a parent or guardian to have the care and custody of a minor.
(8) PUBLIC PLACE means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment housеs, office buildings, transport facilities, and shops.
(9) REMAIN means to:
(A) linger or stay; or
(B) fail to leave premises when requested to do so by a police officer or the owner, operator, or other person in control of the premises.
(10) SERIOUS BODILY INJURY means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
(b) Offenses.
(1) A minor commits an offense if he remains in any public place or on the premises of any establishment within the city during curfew hours.
(2) a parent or guardian of a minor commits an offense if he knowingly permits, or by insufficient control allows, the minor to remain in any public place or on the premises of any establishment within the city during curfew hours.
(3) The owner, operator, or any employee of an establishment commits an offense if he knowingly allows a minor to remain upon the premises of the establishment during curfew hours.
(1) It is a defense to prosecution under Subsection (b) that the minor was:
(A) accompanied by the minor‘s parent or guardian;
(B) on an errand at the direction of the minor‘s parent or guardian, without any detour or stop;
(C) in a motor vehicle involved in interstate travel;
(D) engaged in an employment activity, or going to or returning home from an employment activity, without any detour or stop;
(E) involved in an emergency;
(F) on the sidewalk abutting the minor‘s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor‘s presence;
(G) attending an official school, religious, or other recreational activity supervised by adults and sponsored by the city of Dallas, a civic organization, or another similar еntity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by the city of Dallas, a civic organization, or another similar entity that takes responsibility for the minor;
(H) exercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech, and the right of assembly; or
(I) married or had been married or had disabilities of minority removed in accordance with
(2) It is a defense to prosecution under Subsection (b)(3) that the owner, operator, or employee of an establishment promptly notified the police department that a minor was present on the premises of the establishment during сurfew hours and refused to leave.
(d) Enforcement.
Before taking any enforcement action under this section, a police officer shall ask the apparent offender‘s age and reason for being in the public place. The officer shall not issue a citation or make an arrest under this section unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances, no defense in Subsection (c) is present.
(e) Penalties.
(1) A person who violates a provision of this chapter is guilty of a separate offense for each day or part of a day during which the violation is committed, continued, or permitted. Each offense, upon conviction, is punishable by a fine not to exceed $500.
(2) When required by
SECTION 2. That Section 2 of Ordinance No. 20966, passed by the city council on June 12, 1991, is repealed.
SECTION 3. That within six months after the initial enforcement of this ordinance, the city manager shall review this ordinance and report and make recommendations to the city council concerning the effectiveness of and the continuing need for the ordinance. The city manager‘s report shall specifically include the following information:
(A) the practicality of enforcing the ordinance and any problems with enforcement identified by the police department;
(B) the impact of the ordinance on crime statistics;
(C) the number of persons successfully prosecuted for a violation of the ordinаnce; and
(D) the city‘s net cost of enforcing the ordinance.
SECTION 4. That CHAPTER 31 of the Dallas City Code, as amended, shall remain in full force and effect, save and except as amended by this ordinance.
SECTION 5. That the terms and provisions of this ordinance are severable and are governed by Section 1-4 of CHAPTER 1 of the Dallas City Code, as amended.
APPROVED AS TO FORM:
SAM A. LINDSAY, City Attorney
By /s/ Lisa Christopherson
Assistant City Attorney
Passed June 10, 1992
Katherine A. McMURTRAY, Plaintiff-Appellant, v. J. Mac HOLLADAY, Individually, et al., Defendants-Appellees. Richard L. BUFORD, Plaintiff, v. J. Mac HOLLADAY, et al., Defendants. George A. GEORGE, Plaintiff-Appellant, v. J. Mac HOLLADAY, Individually, et al., Defendants-Appellees. Ginger CROCE, Plaintiff-Appellant, v. J. Mac HOLLADAY, Individually, et al., Defendants-Appellees.
Nos. 92-7255, 93-7002.
United States Court of Appeals, Fifth Circuit.
Dec. 28, 1993.