Schleifer Ex Rel. Schleifer v. City of Charlottesville

fаther; Briggs; Landers, Har her Anne fact, Detective both warrant. a search Landers; Lan ry David Waldo James conceded Agent Wilcox Tackett and Plaintiffs-Appellants, Jaquith, opening ders involved routine normal task force’s bags ob- without searching unclaimed Thus, only does the not taining warrant. CHARLOTTESVILLE, CITY OF evidence lack concrete ease government’s Defendant-Appellee. a war- have obtained would that the officers affirmatively record rant, testimony of No. 97-1723. they conclusion would supports the Appeals, United States Court presence of permit so. To have done Fourth Circuit. cause to establishing probable evidence eviscer- search would the unlawful whitewash 5,May Argued Judge As Pos- requirement. warrant ate the 20, 1998. noted, Decided Oct. is a condition “a warrant ner has seizure, other search or to a lawful precedent of which exceptional circumstances

than States not one.” United

superfluity is (7th

Cardona-Rivera, 904 F.2d

Cir.1990).

TV. reasons, district foregoing

For sup- Allen’s motion denying

court erred evi- improperly seized

press. Because Thomas, “com-

dence, 955 F.2d ease,” we government’s

prised most case Allen’s conviction. The overturn

must consis- proceedings for further

is remanded opinion.

tent with REMANDED. AND

REVERSED Barry by SCHLEIFER, a minor

Daniel father;

SCHLEIFER, William his by

McCutcheon, M. Parthenia a minor Briggs, mother;

Monagan, Lisa his mother; Briggs, her Anne minor Mary Lally-Graves, a minor Nora mother; Lan Lally-Graves, Jill her

Ann by Harry Jacquith, James a minor

ders Bauer, Ameri- Mary Catherine

ARGUED: Foundation Vir- Liberties Union can Civil Appellants. Richmond, Virginia, for ginia, City Attor- Kelley, Office Lisa Robertson Appellee. Charlottesville, Virginia, for ney, Wyatt Wyatt, & Deborah C. ON BRIEF: Charlottesville, Appel- Carter, Virginia, for Gouldman, II, City Office Clyde lants. W. Charlottesville, Appel- Virginia, for Attorney, lee. WILKINSON, Judge, Chief

Before MICHAEL, Judges. Circuit ERVIN and opinion. Chief by published Affirmed majority wrote the Judge WILKINSON joined. Judge ERVIN in which opinion, dissenting Judge wrote MICHAEL opinion.

OPINION WILKINSON, Judge: Chief challenge to the involves appeal cur- juvenile nocturnal constitutionality of a City of Char- enacted few ordinance court held The district lottesville. the constitutional did violate ordinance af- minors, parents, other rights of parties enjoin fected and declined to its en- affect minors who “exercising First agree forcement. We ordinance is protected by the United judgment Constitution, constitutional and affirm the States such the free exercise religion, district court. speech freedom of and the right 17-7(b)(8). assembly.” Id. I. The ordinance sets forth a scheme of warn- ings penalties for minors who violate it. December On the Charlottesville violation, For a first a minor receives a ver- Council, City study after several months of bal warning, followed warning written deliberation, amended Section 17-7 of the minor and the parents. minor’s For juvenile Code enаct a new noctur- violations, subsequent charged the minor is nal curfew ordinance. The Council de- with a Class misdemeanor. The ordinance signed the curfew ordinance to: also makes it unlawful for certain other indi- (i) promote general pro- welfare and viduals, including parents, knowingly to en- general public tect the through the reduc- courage a minor to violate the ordinance. juvenile tion of violence and crime within The full text of the ordinance is included as City; appendix to the opinion. (ii) promote the safety and well-being of City’s citizens, Plaintiffs are five youngest age minors under persons seven- under subject teen who (17), ordinance, are inexperi- seventeen whose one eighteen-year-old, parents and two ence renders them particularly minor vulnerable that, children. The becoming allege minors participants with unlawful activi- their parents’ ties, permission, they particularly activities, occasionally drug wish to unlawful engage in being and to lawful activities which by perpetra- victimized older curfew will crime; permit. tors of These activities and include at- movies; tending late eat”; getting a “bite to (Hi) foster strengthen parental re- band; playing in a socializing with older sib- sponsibility for children. lings; attending Richmond, concerts in Charlottesville, Va., Code Intro. which bring would them through back Char- 1, 1997, Effective March the ordinance during lottesville eigh- hours. The minors, generally prohibits defined un- as teen-year-old plaintiff alleges that he has emancipated persons seventeen, under deprived been of opportunities to associate remaining any public place, vehicle, motor with younger his friends the ordinance. or establishment within city during limits parent plaintiffs allege that the ordi- curfew hours. The curfew takes effect at nance interferes with their decisions on 12:01 a.m. on Monday through Friday, at activities, times, which at what appropri- are 1:00 a.m. Saturday Sunday, and lifts ate for their children. a.m. morning. 5:00 each brought Plaintiffs this action for declarato- The ordinance does not restrict minors’ ry injunctive relief, alleging that activities that fall one eight under of its ordinance violates rights their under exceptions. enumerated may partici- Minors First, Fourth, Fifth and Fourteenth Amend- pate any activity during curfew hours if trial, plaintiffs ments. At dismissed their they acсompanied by parent; they may Fourth trial, Following claims. run parent’s errands at a provided direction order May dated the district they possess signed note. The ordi- rejected plaintiffs’ court remaining claims nance allows minors to employ- undertake and denied their permanent motion for a ment, supervised or attend spon- activities injunction. appeal. Plaintiffs now by school, civic, sored religious, or other public organizations. The ordinance ex- II. empts minors engaged who are in interstate travel, are on the abutting sidewalk Initially we must consider the level parents’ residence, or are involved in an scrutiny appropriate to this ease. Plain emergency. Finally, the ordinance does not tiffs contend that the ordinance infringes mi- law, things seem light of the case two therefore liberties

nors’ constitutional First, possess at least do scrutiny. It is children clear. subject to strict be should which re child, of his so an ordinance merely qualified rights, on account “[a] true that liberty the extent that protection beyond stricts their minority, is not Baird, subject to more than v. be Bellotti does should one Constitution.” (1979) Second, 61 L.Ed.2d chil review. because rational basis II). (Bellotti Minors en opinion) rights same (plurality possess the do not dren Four the First and subject under joy adults, some should the ordinance adult they attain before scrutiny. teenth Amendments level of than the strictest less See, Cent. Parenthood e.g., Int'l, Planned hood. Population Servs. Carey v. 52, 74, 96 Danforth, 428 U.S. Missouri n. (1976); Tinker 49 L.Ed.2d (when minors are opinion) (plurality Dist., Community Sch. Indep. Moines Des scrutiny apparently “is involved the level state inter ‘compelling rigorous than less time, the same At privacy on the applied test restrictions est’ chil abundantly clear that has made Court adults”); Danforth, 428 U.S. rights of those not coextensive rights are dren’s thus believe intermediate 2831. We See, Dist. No. Bethel Sch. e.g., of adults. 403 appropriate level of scrutiny the most to be 3159, 675, 682, Fraser, 106 478 S.Ct. v. U.S. the ordi whether must determine review and II, (1986); U.S. Bellotti 443 L.Ed.2d 549 92 “impor “substantially related” nance York, 634, Ginsberg v. New 99 S.Ct. at United governmental interests. tant” 1274, 629, 638, 20 L.Ed.2d S.Ct. 88 390 U.S. 515, 533, 116 Virginia, 518 v. U.S. States Massachusetts, 321 (1968); v. Prince 195 (1996) (quoting 2264, L.Ed.2d 735 135 438, 158, 168, 645 88 L.Ed. 64 S.Ct. U.S. Hogan, University v. Women Mississippi law, (1944). and “Traditionally at common 3331, 724, 718, 102 S.Ct. 458 U.S. some minors unemancipated lack today, still (1982); Druggists Mutual Wengler v. 1090 rights of self-deter most of the fundamental 1540, 142, 150, 100 Co., 64 446 Ins. U.S. liberty right of including even the mination — conсlude, (1980)). how We also L.Ed.2d 107 i.e., sense, right to come in its narrow ever, constitu ordinance survives Dist. Sch. go at will.” Vernonia and 47J or a under either substantial tional attack 2386, 646, 654, Acton, 132 115 S.Ct. 515 U.S. nar The standard. compelling state interest (1995). 564 L.Ed.2d City in the ordi by the means chosen row customary compelling of these In recognition strong and indeed nance serve authority over chil limitations, state’s “[t]he public needs. like than over is broader dren’s activities 168, Prince, at 321 U.S. actions adults.” III. chil permit laws do 438. State 64 S.Ct. they reach before to drive a car

dren A. §Ann. 46.2-334. age. E.g., Va.Code certain require children laws Compulsory attendance text of the Charlottesville 22.1-254; § see E.g., id. school. to attend pur legislative three identifies ordinance 166, Prince, at 64 S.Ct. U.S. also 321 (1) juvenile violence reduce poses: opportunities of children laws limit Labor (2) juveniles protect city; crime within E.g., Va. employment. engage gainful in swept up in being unlawful themselves Prince, 40.1-78; 321 see also Ann. Code becoming prey to and from drug activities 166, types of 438. These 64 S.Ct. U.S. at (3) crime; perpetrators older in “general interest state’s laws reflect the for chil responsibility parental strengthen Id.; City also being.” see youth’s well represent purposes enumerated dren. These 4, 19, 27 n.& Stanglin, 490 U.S. Dallas v. governmental compelling important and .in (1989); By 1591, L.Ed.2d 18 104 109 S.Ct. terests. Middletown, 401 Borough kofsky v. Court Supreme v. Martin (M.D.Pa.1975), In Schall 1242, F.Supp. 1256-57 aff'd compel- Cir.1976). ‘legitimate and (3d recognized “[t]he mem., 1245 F.2d ling state in protecting interest’ Likewise, the commu City’s strong interest fos nity from crime cannot be 467 tering doubted.” the welfare of and protecting children 253, 264, 2403, U.S. 104 S.Ct. 81 L.Ed.2d 207 youngest members society from harm Braisted, (quoting De Veau See, e.g., well-established. Santosky v. 80 S.Ct. Kramer, L.Ed.2d 1109 102 S.Ct. (1960)). Indeed it weighty constitutes “a so (1982); Ginsberg, L.Ed.2d at U.S. Texas, objective.” cial Brown v. 1274; Prince, 166- If 67, 64 S.Ct. 438. recognized Courts have government cannot safety ensure the of its peculiar “the children,” vulnerability of Bel citizens, it has failed them the most funda II, loti 443 U.S. at mental sense. Schall further confirms that long ago Court observed that persists “this interest juve undiluted in the “streets dangers afford for [children] not af context,” nile as the social costs of crime are Prince, fecting adults.” high no matter perpetra what the S.Ct. 438. Those dangers disap have not tor. 467 U.S. at 104 S.Ct. 2403. peared; they simply have assumed a differ ent and more today. insidious form Each contends its curfew ordi- unsuspecting child becoming risks another nance passed was to combat the marked assaults, victim of crimes, violent growth juvenile in the rate of crime both drug plague wars that America’s cities. Giv nationwide Virginia. During within life, en the realities of urban surpris is not injunction preliminary hearing Dr. William ing that courts have acknowledged spe Ruefle, a expert juvenile criminologist cur- cial vulnerability of children to dangers fews, testified that these state and national of the streets. Nunez Diego, v. San growth trends were l’eflected Charlottes- (9th Cir.1997); F.3d In Appeal Re fact, City produced ville. evidence in Maricopa County, Juvenile Action No. twenty-five percent increase in the delin- JT9065297, 69, 599, 181 Ariz. 887 P.2d quency caseload of Charlottesville’s Juvenile (1994) (Maricopa County); People in Inter and Domestic Relations Court between 1991 J.M., 219, (en est (Colo.1989) 768 P.2d of and 1996. projected Given the increase in banc); see also Bykofsky, F.Supp. at juvenile the population nation’s between 1995 Charlottesville, unfortunately, has not 2005, problem and the juvenile of crime was escaped troubling these expe realities. Two unlikely to abate. City police rienced officers confirmed to the addition, In City the has documented two district court that the they children observe doubling juvenile features phe- crime on the midnight streets after special are at First, City’s nomenon. the evidence on na- risk, of harm. tionwide trends a high indicated of re- rate among juveniles cidivism and a correlation Charlottesville’s third purpose strength — juvenile between delinquency and crim- ening parental adult responsibility for children —is activity. inal juvenile reducing Thus crime significant also a interest. City shares pressing was a step first in reducing parents the with guardians and a responsibility impact overall of on community. crime the protect Prince, children. 321 U.S. at 165- Second, City Charlottesville’s 438; Council was Sisters, S.Ct. Pierce Society v. of concerned about the marked in increase the 69 L.Ed. 1070 violence juvenile associated with crime. As authority State complements paren City’s expert Dr. Ruefle in an supervision, stated tal guiding and “the par role of court, affidavit submitted “[j]u- district in ents upbringing justi their children Virginia veniles in now commit prop- serious fies limitations on the freedoms of minors.” erty crimes at twice the II, rate of those 18 Bellotti at 99 S.Ct. 3035. years older, they and since The Supreme Court acknowledged has “the also commit serious violent crimes at a high- special interest of the State” encouraging er rate than light adults.” of this evi- parental minors to seek advice in making dence, Charlottesville’s first purpose stated important decisions. Id. at undeniably compelling. 3035. And the Court has confirmed that the Qutb Strauss, problems.” in 11 F.3d with the appropriately concerned

state (5th Cir.1993). n. 7 tegrity family unit. Trimble Gor don, 762, 769, 97 S.Ct. constitutionally Charlottesville was (1977). Therefore, City’s like the L.Ed.2d 31 justified that believing its curfew would preceding reducing the inci two interests materially first assist stated interest— juvenile juvenile victim crime dence of reducing juvenile that and crime. violence ization, City’s aim third constitutes Council acted the basis of infor purpose. important governmental sources, many including mation from records police department,

from Charlottesville’s public reports, survey opinion, news data B. Department from the United States of Jus argument Conceding sake tice, reports, police national crime re sufficiently ends are that the curfew’s stated ports other localities. On basis plaintiffs their attack on the compelling, train evidence, such elected bodies entitled which seeks to means the ordinance juveniles keeping unsupervised conclude that goals. achieve its night off streets at will for a late make may community. safer The same streets agree plaintiffs We more have a volatile and less wholesome step meaningful must be a to be shown day. night during than character real, problem. solving wards not fanciful night Alone on streets at children face has in the As the Court said First dangerous potentially life-shap series context, government “must may Drug dealers lure them decisions. ‘posit simply do more than the existence Gangs narcotics or aid in their sale. use It sough' to be must the disease cured.’ membership par pressure them into real, recited harms are demonstrate ticipation “[DJuring violence. forma conjectural, merely regula and that the adolescence, tive mi years childhood and tion in fact harms in a will alleviate these experience, perspective, nors often lack the way.” material Turner Broad. direct and recognize judgment and avoid choices FCC, 664, 114 Sys., Inс. v. to them.” Bellotti could detrimental (1994) (citations L.Ed.2d 497 omit II, see also ted). standard, however, has never re Nunez, Maricopa County, 114 F.3d at “proof’ or quired scientific statistical J.M., 606-07; In Re 768 887 P.2d at P.2d course. legislature’s wisdom of chosen 223. these criminal Those who succumb to 642-43, 88 Ginsberg, 390 U.S. S.Ct. Cf. early may persist in at an influences (“We legislatures 1274 do of not demand . Whether their criminal conduct adults. ”) ‘scientifically legislation.’ certain criteria of judges is we as subscribe to these theories Haskell, Bank 219 (quoting Noble State point. officials with beside the Those elected 31 55 L.Ed. 112 S.Ct. finger pulse on of their home com their (1911)). recognized Court has clearly attempting to munity In reduce did. expect is either mem unrealistic “[i]t opportunities chil through its curfew the for judiciary officials bers of the or state with criminal influ dren to come into contact experimental in of rigors well or versed ences, directly advancing its City was merely technique. But illus statistical this objective juvenile violence reducing first sociological propo proving trates broad and crime. by is a business.” sitions statistics dubious Boren, the exclusion 97 Plaintiffs contend that Craig seventeen-year-olds from the is a curfew This uncertain They argue that in ordinance. legislation no reason for fatal flaw the nature of remedial is responsible of all group this for one-third courts to fashion their own cures or scuttle juveniles fact, by provided. In committed nationwide legislature has crimes those the excluding seventeen-year-olds from always and that courts have been reluctant “[flederal imper- potential leg renders the ordinance question effectiveness of curfew thus However, City’s missibly underinclusive. designed to societal islative remedies address problem during percent a serious cent evidence documents and a further ten juveniles. In among younger Char- during City crime Thus had reason to percent juvenile that, in eighty lottesville in severity, believe both volume and crimes arrests for the most serious were of serious, nighttime juvenile grow- crime was a sixteen, aged in children ten to problem in Charlottesville. percent eighty-five of such were com- crimes City Charlottesville’s Council concluded Furthermore, group. this mitted nighttime might that a help curfew curb this City’s seventeen-year- decision to exclude juvenile rising trend of crime. making In coverage olds from under the curfew is a decision, experi- this relied on the judgment legislative that we are loath to Lexington, ence Kentucky, of cities like second-guess. is not the function of a “[I]t eight enforcing nighttime where months of hypothesize independently court ‘to on the juvenile per- curfew effected almost ten desirability feasibility any possible al- juvenile cent decrease arrests the seri- statutory to the ternative[s]’ scheme. homicide, assault, ous l'obbery, crimes practical judgment ‘These matters of rape, burglary, larceny, auto theft and arson. empirical calculation are for [the State].’” Lalli, testimony And the district court heard that a Lalli v. greatest reducing has chance of (quoting L.Ed.2d Mathews v. Lucas, juvenile city crime a smaller like Char- (alterations (1976)) lottesville, juvenile crime, original). though L.Ed.2d where exercising its legislative judgment, problem, yet serious totally has not become City was forced to balance the however, law enforce- Fundamentally, uncontrollable. subjecting seventeen-year- ment benefit dispute desirability about the or ultimate against olds to the curfew greater law efficacy debate, of curfew political is a not a of doing Weighing enforcement burden so. judicial If one. local communities conclude legislatures benefits and burdens what reducing curfews are ineffective in about. crime, enforce, too onerous or too intrusive minors, on they the liberties of then are free dispute Plaintiffs also the effective legislative to discontinue Yet them. local reducing juvenile ness of the curfew in crime. bodies are entitled to draw conclusions They juvenile say problem real light experience opera- awith curfew’s night, crime is not at but in the after school tion, not have reducing their efforts at report hours. Plaintiffs make much aof juvenile violence shut down court before entitled Juvenile and Victims: Offenders they even have a chance to make a differ- Violence, Update Office of Juvenile ence. Prevention, Delinquency Justice and (1996), Dep’t Justice which asserts that dispute Plaintiffs also that the curfew only percent juvenile seventeen of violent much, anything, will contribute if protect to hours, during typical crime occurs curfew crime, ing juveniles City’s the sеcond twenty-two percent while happens between objective. They deny that the streets are a p.m. p.m. days. 2:00 and 6:00 on school The particularly dangerous place for at children City responds that the lower rate of late- night, contending majority crimes of night may crime reflect the fact that several against by committed children are committed of study the Carolina in the South cities family acquaintances members or rather actually had late-night curfews effect. by strangers than on the street. The fact respect And with to conditions in Charlottes- curfew, that children be at risk at home or ‍‌‌‌‌​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌‌‌​‍City police ville before the officers during day only the means that and the curfew Charlottesville’s Commonwealth’s Attor not, protect will ney unfortunately, juveniles confirmed that the most serious crimes by juveniles from all during nothing crime. It does under committed occurred cur to Further, City’s City few mine the hours. the evidence that re Council consid children juvenile fact, ered main evidence that offenses occur at risk of crime in the street—in ring in p.m. City points thirty-three 11:00 the out Charlottesville between that 1991 by thirty-eight per- percent and 6:00 a.m. increased crimes reported violent the nighttime nationwide occurred on dren’s activities to juvenile victims take more A & Victims: active in their By street. Juvenile role children’s lives. See Offenders J.M., Report, kofsky, of F.Supp. National Office Juvenile Justice at In Re Prevention, Dep’t U.S. Delinquency Finally, P.2d at 223. the curfew assists the (1995). certainly The Constitution parents prefer Justice efforts who their children put legislatures not to the choice of spend does to time on their studies rather than on solving entirety problem of a social or no City law streets. enforcement officers Doe, Plyler it all. part of at parents related anecdotal evidence that some L.Ed.2d actively support welcome the of the authori in establishing ties baselines for their chil Further, by the presented the evidence in enforcing dren and limits reasonable on special City dangers several identified the freedom their children to wander the drug vigorous hours: nighttime street-level night. in the middle of the And streets during evening the late trade that flourishes surveys acted on basis Council early routinely hours that morning testimony public hearings at reflecting transactions, drug uses сhildren facilitate widespread approval of the curfew and the thereby exposing high degree them a support parents’ offers efforts to disci apprehending danger; the difficulties of pline their children. night, at as perpetrators of crime criminal activity subject to is less visible and less pass-

monitoring neighbors concerned C. ers-by; degree and the increased of violence Charlottesville curfew not that com- and seriousness of the crimes only “substantially pur to its related” stated night. at mitted The record documents poses. scope The limited of the curfew and aggravated in Charlottesville assaults exceptions satisfy its numerous would even likely times were almost one and one-half as scrutiny requirement the strict of narrow during as non-curfew to occur curfew hours Fainter, tailoring. See Bernal hours, likely than as robberies more twice 219, 104 L.Ed.2d 175 times, rapes more occur these forcible (1984) (narrow tailoring requires that likely during times as curfew than three government use the least restrictive means hours, driving of drunk more and incidents goals). urge, to advance Plaintiffs howev during likely than five times more to occur er, we follow lead the Ninth hours, curfew that continued into trends Circuit, Diego’s which held San curfew By keeping first months of 1997. children scrutiny ordinance failed strict review be night, off streets few hours each exceptions cause the the ordinance were exposure of curfew reduces the children sufficiently comprehensive not detailed and well-known, these and well-documented least to make the curfew the restrictive harms. serving Diego’s compelling means San Finally, plaintiffs dispute City’s Nunez, ends. 114 F.3d at 948-49. support paren will claim that the curfew goal. applied child-rearing, Diego tal role in its third stated San to all minors They exclusively testimony eighteen, began focus under the 10:00 clearly ap parent plaintiffs, p.m., “daylight who until do and extended immedi ately following.” preciate the curfew and do not welcome it Id. at 938. It contained (1) authority. exceptions: of four a is accom an enhancement The when minor believe, however, adult; parent panied by qualified to a noc a or other was entitled that (2) emergency in promote parental a minor is on an errand turnal curfew would when (3) upbringing. parent; returning in curfew for whеn a minor is volvement a child’s A his (4) school-sponsored activity; parents aids efforts of who desire a perils employment. minor in protect engaged their children from the when a Cal., Diego, Municipal Art. but to control the nocturnal San Code street are unable Nunez, 58.01, quoted at of those children. And a curfew in F.3d 938- behavior encourages narents who ienore their chil- 39. contrast, By ap- engage in Charlottesville’s activities after curfew takes plies than only to minors less seventeen effect. The ordinance interferes with this conclude, years- age, begin midnight right, they by prohibiting does not until children’s weekends, weekdays approval parents’ on and 1:00 a.m. on lifts activities that have full morning, but 5:00 a.m. each and contains no do not fall under one of the ordinance’s eight exceptions. eight exceptions. fewer than detailed Under curfew, allowed, minors are Charlottesville’s every Not state restriction a child’s alia, directly inter remain on sidewalk derivatively abridges freedom the fundamen residences; super- abutting their attend parents. tal rights Supreme Court school, sponsored religious, vised activities rejected parents possess has the view that an public, organizations; civic or other similar unqualified right to raise that children run parents; errands for their to undertake trumps any government regulation of their travel; freely engage any in interstate and to Prince, children’s conduct. In rec Court activity protected by First Amendment. ognized range “that the has a state wide carefully ordinance power Charlottesville limiting parental for freedom and au mirrors the Dallas curfew ordinance thority things affecting in the child’s wel satisfy scrutiny Fifth Circuit found to strict fare.” 321 U.S. at see also Qutb, in 11 F.3d at Like 490. the Charlottes- King Jehovah’s Witnesses in v. Coun Wash. ordinance, ville (Harborview), the Dallas curfew covered ty Hosp. No. 1 Unit 390 U.S. Diego’s (1968) fewer hours than 1260, 20 San and affected (per L.Ed.2d 158 seventeen, eigh- (W.D.Wash. minors under the curiam), aff'g F.Supp. exceptions teen. employ- In addition to for 1967); Bykofsky, F.Supp. Fur emergencies ment and when a minor is thermore, accept plaintiffs’ were we argu presence parent guardian, of a ment, litigants simply artfully future could Qutb curfew at issue in included broad plead parental rights violations of to avoid activities, exception sponsored for First Supreme Court’s chil determination that exception, exception an for be- possess dren do not all the freedoms of adjacent on outside to the sidewalk Arguments rights adults. based on minors’ home, exception minor’s interstate particular to engage in conduct would be travel. Id. Charlottesville’s curfew is fact routinely par arguments recast as based in scope even narrower than the Dallas ordi- rights ents’ engage to allow their children to nance, night— as it hours affects fewer each precisely the same conduct. p.m. Dallas curfew extended from 11:00 We are mindful that the Court weeknights until 6:00 a.m. on and from 12:00 suggested has parents other contexts that weekends, midnight 6:00 a.m. on one hour may possess a right against fundamental un- day more each than the Charlottesville ordi- due, adverse interference the state. See curfew, nance. This scope with its narrow Yoder, 205, 231, Wisconsin v. comprehensive exceptions, repre- list (1972) (state com- sents least restrictive means to advance pulsory high school attendance law interfered compelling Thus, Charlottesville’s interests. concepts parental with “traditional control scrutiny if would survive even strict religious upbringing over the and education appropriate were the standard of review. Illinois, children”); Stanley of their minor

rv. (1972) (state presumption that unmarried plaintiffs’ parent We next address claims father was unfit undermined “the in- care, that the Charlottesville ordinance of parent companionship, violates the terest in the parents. child); custody, management” Meyer Plaintiffs parents Nebraska, constitutionally assert have (state

protected right up to direct their prohibition children’s 67 L.Ed. 1042 bringing government without against teaching foreign undue interfer languages of frus- They urge ence. this right duty parent give includes “the natural the to trated of decisions whether to allow their children to his children education to' sta- suitable (or however, life”). believe, Striking excep ordinances down do not

tion in We same) facially to for vague a tions the as void involving parent’s custodial that cases judicial to a edu- ness is a exercise. Nullifi rights authority direct child’s disfavored or The Char- law in involves a far support plaintiffs’ claim. cation a the abstract catiоn ordinance, prohibiting young judicial power chil- aggressive more use of than lottesville unaccompanied the remaining striking particularized a dren from down discrete and impli- night, simply does not application streets late of it. Of course there will be family intimate decisions any cate the kinds of law. all hard cases under And course any general the above cases. particular applications considered apparent. immediately not standard will exceptions to the Finally, several reason, however, That is no for courts to curfew do accommodate Charlottesville scrap legislative altogether the efforts of the Qutb, 11 parents. F.3d at to preferable It is for courts branch. demon exception ac- for minors include the These to entertaining challenges strate restraint exception for by parent companied a applications challenges of a law as those at the direction running an errand minors arise. reasons parent. general, a the same challenges reject lead us to the constitutional provides The ordinance an Charlottesville plaintiffs under strict scru- of minor even exception are for those minors who “exercis- parent plain- tiny apply to the claims of rights protected by the ing First Amendment F.Supp. Bykofsky, 401 at 1264. tiffs. Cf. Constitution, as such the free United States liberty in juvenile The limited curtailment of speech religion, freedom of exercise of nor a neither a minor’s violates ordinance Va., Charlottesville, right assembly.” rights. parent’s 17-7(b)(8). Plaintiffs insist that this Code exception discretion to accords standardless V. to whether law enforcement officers decide Finally, plaintiffs’ we consider exception applies. According not to to ordi exceptions that various claims plaintiffs, also citizens to learn a it forces unconstitutionally vague. A law is are nance complex body of law order “(1) long vagueness not for so void comprehend scope. govern law guidelines ‘minimal establishes punish for its We lauda decline enforcement,’ gives reasonable notice respect the Amendment. ble effort to First v. Ad proscribed conduct.” Elliott (Committee Solidarity ministrator, See CISPES Plant Health In Animal and Salvador) FBI, (4th El v. 770 F.2d Serv., People spection Cir. 990 F.2d Cir.1985). (5th omitted). exception A 1993) (citation broad impos In statutes fortifies, such from the curfew for activities penalties, of cer “the standard criminal weakens, Lawson, val First Amendment higher.” 461 rather than tainty is Kolender basically place city 8, 103 attempt to 75 L.Ed.2d ues. Plaintiffs 359 n. (1983). place. and hard If clarity councils between a rock even a criminal Yet exceptions, receding mirage. Thus the councils draft ordinance with code can be a subject vagueness exceptions vagueness into a those are doctrine cannot “convert they neglect provide excep challenge. If practical difficul constitutional dilemma tions, attacked for drawing general ties in statutes both then ordinance criminal variety adequately protecting First into Amendment enough to take account however, fitting, sufficiently specific hardly It seems freedoms. human conduct pro for to chastise elected bodies provide warning fair that certain kinds courts activity. Kentucky, tecting expressive The Charlottes- prohibited.” Colten conduct constitutionally stronger ville ordinance protection than without.* with that * might requirement a beneficial dissenting opinion suggests scienter serve the First 17-7(b)(8) imposed improved narrowing §if crim- exception if it function would be however, provides liability. provision, post 873. A inal element. See included scienter exception Groups Organizations,” The First Amendment also does to be unclear. language Id. Here the exception en- is not accord unfettered discretion to law sponsored by clearer and includes activities law, Every forcement criminal officials.. religious organizations school and in addition course, reposes some discretion those who organizations. to civic Considered this possibility must it. The enforce mere context, we believe intended to might hardly such discretion be abused enti- civic give ordinary meaning: “concerned tles courts to strike a law down. Police contributory with or general to welfare and deposition, Chief Wolford’s relied on citizenry of life betterment for the of a plaintiffs, does not indicate an actual risk community or enhancement its facilities.” arbitrary response enforcement. a Webster’s Third New International Dictio- question plaintiffs’ from counsel about wheth- (1961). nary (Unabridged) 412 We decline night er politics a late conversation about everyday find use of term civic to fifteen-year-olds two between a coffee suffer an ambiguity magni- of constitutional exception house fell within the for First Grayned City Rockford, tude. See v. activities, in- Amendment he stated: “You’re 104, 110, U.S. L.Ed.2d doors, location, I, public I it’s think techni- (1972). cally under the be a ordinance viola- excep The ordinance also creates an tion. I doubt whether we would deal with tion in cases where minor is in an involved it.” hedged deposition testimony Such about emergency. authority, Without citation to speculative hypothetical not does demon- plaintiffs pose variety hypothetical situa police will strate that enforce the curfew exception may may tions which this or not arbitrarily. Village Estates of Hoffman apply. example, For they wonder whether Estates, Inc., v. Flipside, Hoffman exception go would include the need to purchase a store to cough or a medicine (1982). thermometer. again, Once existence provides The First exception questions at margins justify does not adequate perfectly notice striking to citizens. It is exception altogether. down the A clear that core First exception Amendment activities brief review of the illuminates many political protest religious worship plainly applies. such situations which it as specifically emergency ordinance midnight after defines protected. would be It is “referring] circumstances, to unforeseen equally rollerblading clear that would not. or the resulting status or condition there cases, poles may Between these marginal lie from, requiring action immediate to safe which they can be taken as come. Id. at 503 life, guard property.” limb Charlottes n. 21. 17-7(a). ville, Va.Code It further details provides ordinance also ex an includes, that “[t]he term is but not limited ception sponsored by for orga activities civic to, fires, disasters, natural automobile acci argue nizations. Plaintiffs dents, or other similar circumstances.” Id. Court found the term “civic” to be vague “[t]here While little imagination is doubt that when it struck an down ordinance that re conjure up hypothetical can eases” to test the quired permits for door-to-door solicitation meaning emergency, speculative these exempted but groups, including several “Bor musings do not render this term unconstitu ough Groups Organizations.” Civic tionally vague. American Communications Oradell, Douds, Hynes Mayor Ass’n (1950). 94 L.Ed. 925 L.Ed.2d 243 Hynes We do not read for the stand broad vagueness Plaintiffs’ claims threaten to proposition any use of the term civic drafting make of a curfew an ordinance per vague. Hynes se The Court in found impossible practical exceptions task. The several of the terms used to describe the City’s shall provide the cause exempted groups, including “Borough Civic its demise. , exception liability persons an satisfy requiring who other- this safe haven minors to

wise would be in violation of the curfew. It requirement. additional state-of-mind why not clear the dissent would want to narrow meet the ever could Finally, no ordinance VI. “strict by the dissent’s precision envisioned that the insists colleague dissenting Our The dis- at 871. Post standard.” vagueness satisfy strict must ordinance Charlottesville nature of labyrinthine argues sent tailored, narrowly it is not scrutiny, that curfew requires a Amendment doctrine First Under vagueness. void for it is that labyrinthine detail. in exception drawn of stan- these application stringent dissent’s an elu- pursue such to city councils Forcing pass however, ever would dards, curfew no pass- from ever them prevent goal would sive no ordi- particular, muster. constitutional doctrine’s vagueness an ordinance. version the dissent’s survive would nance impose not such does principle notice basic the Su- disregards scrutiny, which strict impediment. inquiry that such recognition preme Court’s only in fatal theory, serves in but curfew “strict The Charlottesville not be should occur, Constructors, but also they Inc. crimes head off before Adarand to fact.” popula- particularly vulnerable Pena, protect a to in (internal participating marks quotation being into lured tion L.Ed.2d pro- omitted). Contrary the nation dissent’s locality activity. in Any such every ultimately such see testation, would not hold we do a curfew chose enact pass brief look constitutional A would in the courts. death ordinance picked to curfew municipali- is why adopted analysis indicates means muster. the dissent’s relationship to must substantial ty bear so. interests; the re- governmental significant downplays the with, thе dissent begin To the sub- remains those means strietiveness namely Char- community, interests court the district As judicial review. ject of well-being promoting goals of lottesville’s in however, law noted, curfew Charlottes- fostering pa- citizens youngest itsof lenient “among most modest is ville sugges- The dissent’s responsibility. rental implemented na- laws 'myriad curfew only compelling interests are that these tion curfew, com- Charlottesville’s tionwide.” “sup- in a proceeds manner the state when cities, indeed is other those in pared to role,” post parental of the portive age group limited it covers a regulation: mild legisla- prevalence not consistent night. Its of the hours only a during few (such age limitations tive measures partici- minors exceptions enable various occa- may, on driving) that drinking and on activities necessary or worthwhile pate par- of individual sion, desires frustrate the hold Charlottes- time. We during this veto Moreover, citizen’s by granting ents. comfortably ordinance juvenile curfew ville’s community, the dis- parent in the every standards. satisfies interest compelling convert would sent of the judgment unanimity. This affirm the Accordingly, rule we into a requirement belief that to the in the do so is antithetical We bar court. district high a constitutional latitude possess constitutional innovation. of democratic communities values problem persistent to the devising solutions au- of democratic disablement The same crime, juvenile read- strict dissent’s thority is evident agree that does The dissent AFFIRMED. ing of means. juvenile reducing interest Charlottesville’s subjects but then compelling, crime tailoring narrow impossibly to an Appendix point fails Tellingly, dissent standard. AND AMEND TO ORDINANCE AN might City means that restrictive less 17-7 OF SECTION REORDAIN mea- Forbidding preventive employed. have CHAR THE 17 OF CHAPTER to the propels localities as curfews such sures CODE, AS CITY LOTTESVILLE juve- waiting harshest alternatives — A GEN AMENDED, TO RELATING offenses criminal actually to commit niles FOR MINORS CURFEW ERAL punish- prosecuting, and apprehending, then by the Council IT ORDAINED BE City nor minors Neither ing them. n Charlottesville, Virginia that: City of result. gain from this would 1. Section 17-7 of the Code of the police “Officer” refers to a or other law Charlottesville, 1990, amended, hereby enforcement charged officer duty the reordained, amended and as follows: the enforcing laws the Commonwealth of Virginia the City and/or ordinances the Section 17-7 Curfew for Minors. Charlottesville. purpose (i) of this pro- section is to: “Parent” refers to: general mote the protect welfare the (1)a person iswho a biological minor’s general public through the juve- reduction of or adoptive parent and legal who has cus- nile (ii) violence and crime City; within the tody of a minor (including parent, either if promote safety and well-being of the custody is shared under a court order or City’s citizens, youngest persons under the agreement); age (17), of seventeen whose inexperience (2)a person who is the biological adop- or renders them particularly vulnerable to be- parent tive with whom a minor regularly coming participants in activities, unlawful resides; particularly unlawful drug activities, and to (3) person a judicially appointed as a being by victimized perpetrators older legal guardian minor; of the and/or crime; (Hi) foster strengthen pa- (4) (18) person eighteen a years age rental responsibility for children. or (as older standing in parentis loco indi- by cated the authorization of an individual (a) Definitions. (2) (3) part(s)(l), listed in or of this defini- As used within this section the fol- tion, above, person for the to assume the lowing phrases words and shall have the physical care or custody child, of the or as meanings ascribed to them below: by any indicated circumstances). other “Curfew hours” refers to the hours of “Person” refers individual, to an any not to 12:01 a.m. through 5:00 a.m. on Monday association, corporation, any or legal other through Friday, and 1:00 a.m. through 5:00 entity. a.m. on Saturday and Sunday. Place” “Public any place refers to to which “Emergency” refers to unforeseen circum- public or a substantial group public stances, or the status or condition resulting access, has including, but not limited to: therefrom, requiring immediate action to streets, roads, highways, sidewalks, alleys, life, safeguard limb or property. The term avenues, parks, the common and/or areas of includes, but is to, fires, limited natural schools, hospitals, apartment houses, office disasters, accidents, automobile or other sim- buildings, transportation facilities shops. ilar circumstances. “Remain” refers to the following actions: (1) “Establishment” refers to any privately- linger stay or upon place; or owned place of business within oper- and/or profit, ated for a public (2) which the is invit- to fail place to leave a when request- ed, including, but not any limited to place of ed to by do so an owner, officer or amusement or entertainment. respect operator With or person other in control of that Establishment, such place. term “Operator” shall any person, mean firm, any associa- “Temporary facility” care refers to non- tion, (and partnership part- the members or locked, non-restrictive shelter at which mi- thereof) ners (and any corporation and/or wait, nors may under visual supervision, to thereof) officers conducting or managing that by parent. retrieved No waiting minors Establishment. facility such shall be handcuffed and/or (by otherwise) secured handcuffs or any any

“Minor” refers to person under seven- object. (17) stationary years teen who has not been emancipated by court pursuant (b) order entered It shall minor, be unlawful for a during to Section 16.1-333 of the Code of Virginia, hours, curfew to remain in upon or any Pub- 1950, as amended. lic Place within City, to remain any Operator (e) for the unlawful shall be It or parked or therein operating vehicle

motor who is Establishment, any person or for any premis- upon in or thereon, remain toor thereof, permit, knowingly employee an City, within any Establishment es of upon to remain encourage a minor or allow unless: during Establishment premises par- (1) accompanied minor is pros- be a defense shall hours. It ent; or Opera- this subsection under ecution emergen- involved minor is an Establishment employee tor cy; or department that police notified the promptly employ- in an engaged (3) minor is the the Establishment present at was a minor returning or going to is activity, or ment to leave. and refused hours after curfew or activity, without detour such home any person for (f) unlawful shall be It stop; or name, minor) give a false to any (including directly (4) the sidewalk minor is the any officer to address, number telephone or resides she or he place a where abutting of this sec- possible a violation investigating parent; or awith 17-7. tion activity attending an (5) minor is the (g) Enforcement.' civic school, or religious, by a sponsored any taking enforce- (1) or Before Minors. organization public by a organization, hereunder, shall an officer organization action ment similar by another agency, or for investigation the by supervised an immediate activity is make entity, which or not the or whether ascertaining or of going purpose is minor adults, the and/or place, public in a minor a activity without of presence an from such returning within Establishment vehicle motor and/or stop; or or detour is in viola- hours during Curfew the at the errand (6) is on an minor the 17-7(b). tion of has minor and the parent, aof direction (A) investigation reveals by If such writing signed a possession his or her in violation is minor of such presence following infor- the containing the parent the 7(b),then: and of name, address signature, the 17— mation: authoriz- parent previously (1) number has not telephone minor if the number errand, telephone any such the for warning ing the a issued been during reached may be issue parent violation, officer shall the then the where minor, minor, errand, of which the the name the warning to the verbal errand, minor’s warning the the description by a written brief be followed shall destination(s) the minor to the the hours department police mailed errand; or or engaged in parent(s), be her authorized his or minor and in interstate (7) involved minor been (2) previously has minor if the or beginning terminat- or through, any travel such viola warning for issued Charlottesville; or in, City of charge shall tion, the officer then Amend- ordi exercising First of this (8) a violation minor is minor re States by the United a summons issue rights protected shall nance and ment in court Constitution, appear free exercise as the such minor quiring the 16.1-260(H)(1)). right speech (Ref. Va.Code religion, freedom assembly. And the officer (B) practicable, soon As parent a minor’s (c) unlawful be It shall shall: encourage such or allow knowingly permit, her or to his 17-7(b). (1) the minor release to violate minor or parent(s); iswho person for a (d) unlawful be It shall temporary the minor place vehicle any motor operator or owner to exceed period facility for a care encourage a viola- or permit, allow knowingly hours, so the curfew the remainder 17-7(b). tion parent(s) his or her may retrieve age, gender charged race those or minor; or detained under the ordinance. (3) if a give minor refuses to offi- 3. This ordinance shall be effective on cer address, his her name and re- 1,1997, March at 12:01 a.m. give

fuses to name address of Approvеd by Council his parent(s), or her parent or if no 16,1996 December can prior be located to the end Jeanne Cox /s/ applicable hours, located, curfew or if Jeanne Cox /s/ parent no appears accept custody of Clerk City /s/ Council minor, may the minor be taken to MICHAEL, Judge, Circuit dissenting: a nonsecure crisis juvenile center or shelter Today, the majority relegates and/or taken to a kids to sec- judge or citizenship intake ond-class juvenile officer of upholding Char- nighttime court to be lottesville’s dealt with in the manner for minors. Forbidding pursuant and go to children to procedures such out at night as affects their fundamental required by rights, law. and a such restric- Va.Code {Ref. tion 16.1-260(H) can be only § (1); valid if it § withstands 16.1-278.6; strict scrutiny. The §§ 16.1-U1(A)(1)). Charlottesville curfew ordi- nance fails the test because sweeps it too If Others. an investigation by offi- broadly usurps than supports rather pa- cer person reveals a has violated 17- rental authority over rearing. child (d) The 7(c), or- (e), and if person and/or the has dinance has another constitutional defect as not previously been issued a warning with well. Although it is a crime to violate the respect any violation, such an officer ordinance, the only crime is vaguely defined. shall issue a verbal warning to person, the The curfew apply does not when minors are which shall be by followed a written warn- “exercising First rights.” Amendment ing by mailed the police department to the exception is unconstitutionally vague, leaving person; however, any if such warning has children, their parents, police and the previously been issued person to that then guess particular whether punisha- conduct is the officer shall charge person the with a ble as a crime. respectfully I dissent. violation and shall issue a summons direct- majority The attempts ing person the brush this appear in dis- court. sent aside claiming that my under ap- (h)-Each violation of this section 17-7 shall proach “no curfew ever pass would constitu- constitute a Class 4 Misdemeanor. muster,” tional ante at 854-55. I can as year Within one after the effective easily say that under majority’s approach date March ordinance, of this no curfew would ever constitutional mus- fail City Manager shall review this ordinance and ter. I’m afraid my claim will proven be report and make recommendations to the true. long As as the majority’s standard is City Council concerning the effectiveness of law, city a council pass can juvenile and the continuing need for the ordinance. curfew as a routine measure because the City The Manager’s report shall specifically justification is so easy to articulate. This include the (a) following information: should not stand under the Constitution. practicality enforcing the ordinance and up Children make quarter of our popula- any problems with enforcement identified tion, their rights ignored. must not be A (b) Department; Police impact city council cannot order such large seg- ordinance; (c) cost of the other data and ment of the community stay at home for information which the Department Police be- thirty-three hours of every week unless its lieves to be relevant in assessing the effec- curfew satisfies strict scrutiny. Subjecting tiveness of the ordinance; (d) curfew Charlottesville’s ordinance to this test does information from citizens regarding whether not subvert the “democratic authority” of the has ordinance been administered and en- City Council, see ante at 854-55. On the fairly, forced including information regarding contrary, the Council’s authority must impermis- restrictions curfew’s gued The bounds. within exercised process right rule, their due sibly burdened cannot, majority name of Council over parental discretion and control minority, exercise rights of away constitutional take by making the rearing of children seventeen. under all children in this case illegal. and control discretion exercise this statute challenged the Finally, plaintiffs all I. under the Due being vagueness void un- all targets Charlottesville’s court ruled for Process Clause.2 district seventeen persons under emaneipated a trial on the claims after City on these a.m. and of 12:01 the hours between applies grounds that reverse on the I would merits. a.m. and 1:00 nights and a.m. on week 5:00 Protection Equal curfew violates the Saturday nights Friday and a.m. on 5:00 vagueness. and is void for Clause mornings). See Char Sunday (Saturday and (b) (hereinaf 17-7(a), Va., lottesville, Code Code). makes ordinance

ter II. minors to “remain” these unlawful for conduct of curfew criminalizes Because the open to the private property (including public seventeen, persons undеr one of the hours unless during curfew public) age-based classification City’s use of See id. are met. eight exceptions curfew’s Fourteenth subject to the limitations minor to exceptions allows a of these One Protection Equal Clause. Amendment’s minor is exercis “the public when remain age-based classifica Generally, making laws by the protected First review, see subject basis to rational tions Constitution, free such as the United States 452, 470, 111 Ashcroft, U.S. Gregory v. 501 speech and religion, freedom exercise (1991); 2395, L.Ed.2d 410 Massa 115 7(b)(8). A § assembly.” Id. right of the 17— Murgia, 427 v. Retirement chusetts Bd. of if he the curfew exempted from is also minor 2562, 307, 313-14, 49 L.Ed.2d 96 S.Ct. U.S. running ishe documentation has written (1976), upheld if there is a are and thus 520 and parent his as directed an “errand” the use of the relationship ties rational statutory criteria. nine meets this document governmental legitimate classification 7(b)(6).1 the Minors who violate §id. See 17— Doe, 312, 509 319- Heller v. U.S. purpose, see punishment, subject to criminal curfew (1993). 2637, 21, L.Ed.2d 257 125 113 S.Ct. “knowingly permit, who parents so are and However, age-based classification an when defy the encourage” their children allow or re rights, a court must affects fundamental 17-7(c). §id. See curfew. exact “the most the view classification 10, 1997, Daniel Sehleifer On March Jeter, v. U.S. 486 ing scrutiny.” See Clark minors, parents of these adult two four other 1910, 465 456, 461, 100 L.Ed.2d 108 S.Ct. minors, adult eighteen-year-old decision); (unanimous (1988) also Austin see City of Charlottes- against the brought suit Commerce, U.S. 494 Michigan v. Chamber of declaratory judgment seeking a ville 652 108 L.Ed.2d 110 S.Ct. In dis- unconstitutional. ordinance is curfew (1990). their argued plaintiffs the minor trict court does ordinance curfew The Charlottesville equal pro- Amendment a Fourteenth case as rights. Kolender implicate fundamental funda- implicates their violation that tection Cf. 352, 358, Lawson, v. including First rights, mental (1983) impli- (loitering statute L.Ed.2d 903 right to intra- rights and the process and due “consti- Amendment liberties First ar- cates parent plaintiffs The state movement. engaged er- in the to be minor is authorized the follow- must contain written 1. The document 17-7(b)(6). name; City (2) Code rand.” See (1) minor's information: name, (4) (3) signature, ad- parent’s authorizing number; (6) equal dress, (5) plaintiffs’ majority, the tele- telephone I read 2. Like arising process as parent may reached claims protection and due where this phone number Amendment, errand; (7) than rather "brief” Fourteenth under the during pendency of the com- alleged in errand; (8) as desti- the Fifth Amendment description minor’s destinations; plaint. hours “the nation light movement”); tutional to freedom of Supreme Court has consistently re City Diego, Nunez v. San F.3d flected the traditional concept Western (9th Cir.1997) family 944-45 (holding parental a “unit with broad authori ty over infringed minor children.” rights). minors’ See Parham Nor fundamental J.R., 584, 602, mally, require this would to demon (1979). Indeed, L.Ed.2d 101 the Court’s strate that the ordinance satisfies strict scru “ interpretation ‘constitutional has consistent tiny. However, because case involves ly recognized parents’ [that] claim authori minors, rights the fundamental and not ty in their own household to direct rear adults, majority those of concludes that ing of their children is basic the structure equal protection requires only intermediate ” II, society.’ our Bellotti 443 U.S. at scrutiny. ante disagree. See at 846-47. I York, (quoting Ginsberg S.Ct. 3035 Newv. Circuits, Like the Fifth and Ninth I would Equal hold that the Protection Clause sub (1968)). authority is undoubtedly jects scrutiny governmental strict all clas parental broad. When control comes into impact sifications that fundamental constitu play, “unemancipated minors lack some of Nunez, rights. tional 114 F.3d at 945- the most fundamental of self-determi 46; Qutb Strauss, 11 F.3d n.& 6 including right even the liberty nation — its narrow (5th Cir.1993). Under this standard the sense, i.e., right to come and Charlottesville curfew is unconstitutional. go at will.” Vernonia Sch. Dist. v. Ac 47J ton, L.Ed.2d 564 A. However, parent’s authority broad does Some unique mention status of chil- generally carry over to the state. “[0]ur society dren our necessary to set the system long ago rejected any stage explanation why for the strict scruti- notion that a child is ‘the mere creature of ny necessary. Court has and, the State’ contrary, asserted that “ ‘[cjhildren long recognized that very have a parents generally ‘have coupled the right, special place in life which the law should high duty, with the to recognize prepare and Baird, reflect.’” 622, Bellotti v. 443 U.S. [their children] ‍‌‌‌‌​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌‌‌​‍for additional obligations.’” 633, 3035, (1979) 99 S.Ct. 61 797 L.Ed.2d Parham, 602, 442 at (quot 99 S.Ct. 2493 (Bellotti II) (plurality opinion). According- Sisters, Society Pierce v. 510, 268 U.S. ly, plurality the Bellotti II identified certain 535, 571, 45 (1925)); S.Ct. 69 L.Ed. 1070 see factors that the Court has justify used to II, also 637, Bellotti 443 U.S. at 99 S.Ct. situations where “the rights constitutional of 3035; Yoder, Wisconsin 406 U.S. children cannot equated be with those of 1526, (“This 92 S.Ct. 634, adults.” Id. at 99 3035 (identifying S.Ct. primary parents role of the in upbringing the factors peculiar as “the vulnerability of of their is сhildren now beyond established children; inability to make critical deci- tradition.”). debate as an enduring American informed, sions in manner; mature and The repeatedly Court has that said it is “ importance parental of the in child role ‘cardinal with us that the custody, care and rearing.”). These factors reflect the view nurture of the child par reside first in the unique- that “[t]he role in society our ents, primary whose function and freedom family requires ... that princi- constitutional preparation include obligations the state for ” ples applied be with sensitivity flexibility and can neither supply nor hinder.’ See Bellot special to the parents needs of and children.” II, 638, (altera ti 443 U.S. 99 at S.Ct. 3035 633-34, See id. at 99 S.Ct. 3035. This focus tion in original) (quoting Prince v. Massa on the family parent-child and the relation- chusetts, 438, 321 U.S. 64 S.Ct. 88 ship is central the Court’s decisions and (1944)). L.Ed. 645 This recognition broad must be examined to when understand there parents’ right to control the upbringing justification is concluding for that a minor’s of their and of children constitutional defer are not coextensive with parental ence to authority is linked to the those of an adult. parents’ duty to protect raise and their chil-

861 or mental health is Robertson, 248, “physical where a child’s 463 U.S. Lehr v. See dren. 603, Parham, 442 99 2985, U.S. at jeopardized,” 614 see 257-58, S.Ct. 103 390, Yoder, 233-34, Nebraska, 2493; 92 U.S. at 262 U.S. 406 (1983); S.Ct. Meyer v. circumstances, 625, 1042 400, L.Ed. In these 67 43 S.Ct. S.Ct. strong on the parents rests are able and parents presumption strong deference of affection bonds that “natural of their presumptions in the best interests willing to act Parham, best interests act in the parents to 442 may lead See be rebutted. children possess “parents power them children” 99 S.Ct. 2493. state’s U.S. at maturity, experience, limited, child lacks what a is displace parental discretion for mak judgment required capacity for case-by- a however, justified on must be Parham, See ing life’s difficult decisions.” ease basis. 2493; also see 99 S.Ct. at 442 U.S. acting “may at times parents some That II, at 443 U.S. Belloti ... of their children” against the interests Yoder, S.Ct. 1526. caution, hardly a is but a basis creates is the able instances state Only limited pages those reason to discard wholesale power to control parent’s broad to assert parents experience that teach that human when example, minors. For the activities inter- act in the child’s best generаlly do guardian for legal acts as the state governmental The statist notion ests. all, much, if child, not assume it will authority supersede parental power should Similarly, prerogatives. parent’s traditional abuse parents cases because some in all public aof administrators the teachers Amer- repugnant to children is neglect chil parentis” “in loco while act school will ican tradition. custody physical because are in their dren (citations omit- ” Id. at S.Ct. “ authority’ part of ‘delegate [their] parents ted). Indeed, the decision “[sjimply because under their children by placing the school or to a child agreeable not parent Vernonia, its instruction. risks does automati- it involves because Blackstone, 1 W. (quoting that deci- power to make cally transfer England the Laws Commentaries parents agency to some sion Fraser, (1769)); No. Dist. Sch. Bethel Id. at the state.” officer of 682, 106 L.Ed.2d added). Thus, special except in (emphasis (Bren (1986); id. at circumstances, normally defer must the state J., judgment).3 nan, concurring parental degree of aof broad to the exercise (as parens state way, the In a similar discretion. par- occasionally displace the patriae) the state does that while It also clear rearing in order in child primary role ents’ welfare in independent interest the have an Thus, the state child’s welfare. protect superseded children, may be this interest of delinquency in parental discretion may trump broad dis- right to exercise parents’ the (because al- parental control has proceedings See, e.g., raising children. in their Martin, cretion 467 faltered), Schall ready see 1526; 229-30, Yoder, 92 at S.Ct. 406 U.S. 2403, 207 81 L.Ed.2d 104 S.Ct. U.S. 571; 534-35, Pierce, 45 S.Ct. at 268 U.S. Gault, (1984); 87 S.Ct. re 387 In 400, 625. Conse- 43 S.Ct. Meyer, at (1967), 262 U.S. in 1428, situations freedom, of their to the control physical their thrust real majority overlooks Vemonia's 3. The repeatedly guardians.”). Vemonia parents or suggest a minor’s by quoting constitu it to that rights the emphasized that a “vis-a-vis subject minor's respect state are rights to the with tional legal rela- 847, depend limitations,” may the individual’s State tionship at "in- "customary ante that to the to and that "central" the State” liberty with its right in narrow the of clud[e] even will,” children was the fact sense, i.e., decision go id. Court’s claiming right at the come privacy right "been 654, had Vernonia, a constitutional at 115 very (quoting 2386). 515 U.S. custody the State temporary the quoted next committed majority the the Had 2386; 654, 115 id. at Vemonia, See as schoolmaster.” the be obvious that it would line in 2386; 665, 655, 656, 662, 115 S.Ct. id. at see also lack some of clear that minors case makes Nunez, (rejecting as "out 944-45 F.3d at rights of self-determination most fundamental cf. majority uses quotation the same See context” parents, not the state. respect their Vemonia). subject, (“They as are even at 654 515 U.S. quently, rights 171, in minors relation to at Accordingly, S.Ct. 438. the Court analyzed the state must be to consider not has application since limited Prince’s to situ- “ ” only interests of the minor and the state ations where there is a ‘substantial threat’ parents. but also interests Par of harm “physical to the or mental health of Cf. ham, (minor’s at 99 S.Ct. 2493 public safety, order, the child or to peace, inextricably “interest is par linked with the Yoder, or welfare.” See 406 U.S. at ents’ obligation interest for the wel light S.Ct. 1526. In of Yoder and the facts of child”). Thus, fare and health of the the Prince, I read Prince to allow a state to analysis rights of a complicated by minor’s parental override discretion when the exer- (a party of this parent) addition third cise of this discretion creates substantial who can bolster either the claim of state’s threat safety the health and of children. authority or the minor’s rights. assertion of threat, In assessing this suggests Prince Yoder, 406 U.S. at 92 S.Ct. 1526 Cf. very young particularly children are vulnera- (recognizing “competing par interests of ble to harm. ents, children, requires and the State” addi This discussion underscores the analysis).4 tional recognition Court’s special of the status of Although the language Court’s in Prince v. predominance children and the family Massachusetts, 64 S.Ct. particular, unit. it underscores (1944), L.Ed. 645 “taken at broadest Court’s deference authority to the traditional sweep” support would lend majority’s to the parents over the activities of chil- expansive power, view state Prince has dren. background, With this I now turn to application beyond limited its facts. See Yo proper scrutiny standard that must be der, U.S. at 92 S.Ct. 1526. Prince applied in this case. challenge to a involved conviction under a child labor law that made it criminal for B. parents boys to allow under the twelve girls younger eighteen than to sell news equal protection minors’ challenge papers Prince, and similar items. See 321 this analyzed ease must be under strict scru- 160-61, U.S. at 64 S.Ct. 438. tiny. The Court This conclusion flows from the basic sustained conviction of Mrs. question Prince for majority ignores. Why are the (and taking niece), her ward nine-year-old rights persons constitutional who federal girl, with her to assist in selling religious are defined as minors under state law differ- during literature the evening hours. See id. ent from those adults? The answer is that 161-62, id. at a minor’s basically J., (Murphy, dissenting); see also adults, Gins the same those of but in certain berg, 638-39, 88 S.Ct. 1274. The situations “significant there in- state Court ruled that pro the state’s interests ... present terests] [are] tecting nine-year-old from psychological case of an support adult” that will a broader and physical might harms that result from authority regulate minors. See Planned Prince’s activities justify were sufficient to Danforth, Parenthood v. conviction. (1976).5 U.S. at When state, S.Ct. 438. The Court was careful to justify these regulation, interests they do so however, that its decision did “not extend not because minor’s rights constitutional

beyond presents.” the facts the case always See id. are inferior to those of an but adult - ACLU, -, Recently, 4. in Reno v. family computer U.S. the to obtain information on -, 117 S.Ct. 138 she, L.Ed.2d 874 the parental judgment, Internet in her (1997), recognized the Court that it is "clear appropriate." added). (emphasis deems See id. strength government's that the interest in protecting equally strong” minors is not in all 5. There are limited differences imbedded in our applications Decency of the Communications instance, Twenty-Sixth Constitution. For the Specifically, Act. the Court indicated that the guarantees right only Amendment the to vote government’s protecting interest in minors from Const, eighteen those and older. See U.S. material greatly indecent where "a would be diminished amend. XXVI. parent 17-year-old allow[s] her to use

863 plurality four-justice II a noted that specific in- Bellotti government’s rather because has three reasons to Supreme used Court are suf- regards minors sometimes as terests differently “justify[ treating minors ]” strict regulation survive to allow ficient peculiar “the adults under the Constitution: Accordingly, I would hold scrutiny. children; inability vulnerability minors are no less rights” of “fundamental informed, in an ma- make critical decisions thus, and, than those adults fundamental manner; importance of the pa- and the ture vigor under proteсted with the same must 634, rearing.” 443 at role in U.S. rental child Nunez, analysis. 114 scrutiny See a strict If minors are to be accorded 99 S.Ct. 3035. F.3d at 945. by rights unequal to adults constitutional particular regulation, these fac- reason of a 1. government’s support must assertion tors from the Su conclusion is drawn “ only upon authority. ‘It is such greater analyzing approach preme general Court’s may deprive premise that a State ... it makes of minors. The Court rights depri- rights ... a similar [when children of adults, “[mjinors, well as are as clear that constitutionally intolerable would be vation] possess by Constitution and ” protected II, n. 443 U.S. at 635 for adults.’ Bellotti Danforth, 428 rights.” See constitutional 13, Ginsberg, (quoting 390 U.S. 99 S.Ct. 3035 74, Tinker v. 96 see also at S.Ct. U.S. (Stewart, J., 650, concurring 1274 at 88 S.Ct. Dist., Indep. Community Sch. Des Moines added). result)) (emphasis in the 21 L.Ed.2d 89 S.Ct. 393 U.S. by principle The is illustrated (“[s]tudents (1969) un ... are ‘persons’ 731 forbidding of statutes Court’s treatment possessed are [who] der Constitution our parental without to obtain an abortion minor must re rights which State fundamental steadfastly consent. Court has insisted Gault, 87 S.Ct. In re spect”); judicial by must have a that such statutes (“whatever II, See, pass procedure. e.g., Bellotti impact, the Four precise neither be their (consent 647-48, stat at 99 S.Ct. Rights Bill of is nor the teenth ute); Danforth, 428 U.S. at alone”). Indeed, simple fact of for adults (same). analysis by the used Court justify a dilution minority cannot age itself instructive. After particularly DanfoHh protection. Bellotti of constitutional provision spousal consent was ruling that a Baird, S.Ct. unconstitutional, the Court addressed the II) (four-vote (1979) (Bellotti L.Ed.2d saying provision, parental consent statute’s (“A child, merely on ac opinion) plurality above, with has said that “much of what been beyond pro minority, is not of his count consent], applies [spousal respect Constitution.”). Because tection [parental equal consent].” force to do mature “[constitutional explained The Court only being magically when one into come adults, “[m]inors, protect are well as majority,” attains state-defined possess constitu by the Constitution and ed (em Danforth, 428 U.S. at However, acknowledged rights.” tional Id. added), persons, regardless age, phasis all au has somewhat broader that “the State system. rights under our possess these Cf. children the activities of thority to regulate II, 635, 99 Bellotti Consequently, the than of See id. adults.” (“children protected are generally then, remains, “It to exam explained: Court gov guarantees against same any significant state ine whether there (em deprivations as adults” ernmental abortion on conditioning an interest added)). phasis present ... is not parent consent of a possess same id. at generally adult.” See minors the case While added). analysis deprivations as dem governmental (emphasis rights against not assume that adults, unique minors can the Court did to onstrates that considerations authority always possesses broader government’s inter- the state weight to the lend more contrary, it Nunez, To the regulate 114 to children. regulating this class. See est in significant in- were there 945; Qutb, n. 6. In looked to whether 11 F.3d at 492 at F.3d specific justified parental terests to minors that example consent demon- law, indicating that the law would be uncon- government sometimes, strates that may provide stitutional if interests these did always, but not protecting have interests in support authority sufficient for broader impose special minors that will allow it to regulate examining minors. After the inter- restrictions that narrow a minor’s constitu- state, ests advanced the Court struck rights. tional It follows that courts must parental down the law consent because it look at regulation question in to deter- justification.” lacked “sufficient See id. at justification mine if the state has sufficient 75, 96 S.Ct. 2831. rights claim that a equal minor’s are not the applied Only through process The Court same adult’s. reasoning can subsequent parental in used to its age majority the state-defined any have Danforbh consent II eases. Bellotti the Court con significance insofar rights as constitutional judicial bypass requirement structed its are concerned. permit undertaking only the consent apply to those justifiably minors who could be Thus, differently by treated from adults. a pass procedure must allow minor to demon know special We that we must evaluate the (1) strate that either she is mature and in may justify greater interests that degree enough

formed to make the abortion decision governmental authority over minors in the herself or the abortion is in her best Still, specific regulation. context of the interests. See Ohio v. Akron Ctr. Re question remains as to which scrutiny level of Health, prod. appropriate is in involving cases constitution- (1990) (Akron II); rights. Logic compels al scrutiny that strict II, 647-48, Bellotti 99 S.Ct. 3035. apply. First, justification the state’s that minors It is clear from the discussion above that generally are not able “to make critical deci majority’s categorical approach is wrong. informed, manner,” sions in an mature Bel majority apply would intermediate scru- II, lotti 443 U.S. at is lost tiny minors, in all involving cases even those adjudged when a minor is mature and in in which government justification has no immaturity justifica formed. Without specific to infringing upon minors for their tion, to, the state has little reason and indeed rights. fundamental In the latter situation cannot, require parent’s consent. Dan Cf. governmental interest in regulating mi- forth, (parent’s 428 U.S. at majority’s approach nors under the is identi- outweighed interest abortion decision is cal to its interest in regulating adults. Yet mature privacy right). Similarly, minor’s rights of minors could still be treated consideration, Bellotti’s final greater re differently because their “fundamental” imposed strictions be on minors to rein rights protected are not scrutiny with strict “importance force the parental role ranging implications. review. This has far II, rearing,” child Bellotti 443 U.S. at Legislative pass many bodies can regu- laws premised presumption on the lating pass conduct that would parents intermediate discharge will “responsibil scrutiny scrutiny. but fail strict ity Under the for [their] children’s See id. well-being.” majority’s approach, ap- such laws could be 99 S.Ct. 3035. When a minor can plied applied to all minors but could not demonstrate to a be court that an abortion is (whose any interests, adults rights her best fundamental the state’s interest in in are protected by volving parents scrutiny), strict though so much even reduced government can longer require regulate state no had no reason to mi- minor to parental Therefore, any obtain nors more consent. when a than it did adults. The ma- jority’s therefore, minor is holding, mature or an abortion is her best allows a minor to interests, parental deprived requirements consent when a unconstitutional because deprivation the state’s interests similar constitutionally would be minors) (specific adults, justify do not a restric intolerable for though even the state tion applied that could not be any to adults. lacks reason for different treatment.

865 Indeed, majority if justified essentially for an abortion. was cannot be This result cоrrect, per- completely all the state ban abor- citizenship for could creates a second-class eighteen. age majority. For these tions for women under the sons ‍‌‌‌‌​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌‌‌​‍under the rights fallacy will applying This confirms the inter- persons, federal being magically only scrutiny involving come into fun- “mature and mediate cases age of [they] the state-defined attain[ ] when damental of minors. Danforth,

majority,” 428 U.S. at S.Ct. by applying I avoid these would difficulties 2831.6 scrutiny equal protection strict to all chal Moreover, majority’s approach is com lenges involving rights, regard fundamental Supreme with the pletely inconsistent less whether minors adults are involved. parental consent in the decisions on Court’s approach, this minors must be treated Under above, the abortion context. As discussed government the same as adults whenever the mi constitutionally regulate a state cannot specific support lacks interests to minors to rights by requiring parental nor’s abortion authority regulatory more restrictive over judi provides a regulation unless the consent II, n. them. Bellotti 443 U.S. at 635 Cf. majority’s holding, howev bypass. The cial 74-75, Danforth, 428 er, a mi regulate allow the state to would However, 96 S.Ct. 2831. when circumstances regulation rights if the state’s nor’s abortion trigger governmental par interests that are “ ‘important’ gov substantially related’ to ‘is minors, interests, when cou ticular to these interests,” ante at 847. Such ernmental interests, pled government’s with the other clearly Supreme result is at odds with government’s greater for can make claim always has an approach, as the state Court’s stronger. much If restrictions on minors abortions. important regulating interest compel these interests taken as a whole are Wade, Beginning with Roe v. (if narrowly ling, government’s regulation (1973), 35 L.Ed.2d 147 the Su S.Ct. tailored) scrutiny will survive strict with re repeatedly recognized the preme Court has minors, spect though even it would fail the legitimate interest “important state’s Nunez, test the case of adults. See protecting potentiality of human life.” (“the Bellotti framework enables F.3d at 945 Id. 705. See also Planned S.Ct. state has a courts to determine whether the Casey, Parenthood v. compelling justifying greater restric interest (1992); 2791, 120 L.Ed.2d 674 Harris v. adults”); Qutb, 11 tions on minors than on McRae, (same). approach 492 n. 6 F.3d at This interest it provides principled аpproach therefore self would enable state abortion statutes may be treated deciding when children dif Therefore, scrutiny. meet intermediate purp ferently from adults for constitutional scrutiny majority’s holding that intermediate oses.7 apply regulation of minors sim should to the adopt Ninth The Fifth and Circuits ply squared cannot be with the approach analyze equal protec- require cannot minors’ Court’s insistence that state challenges scrutiny when fun- parental minor consent tion with strict a mature to obtain plurality opinion majority Although disagree with details of the 7. The relies on the 6. I International, Carey Population court, Services analysis approach taken the district its 678, 691-99, properly absence of focused on the existence or (1977), support argument its that the Char- specific justify to minors that would interests subjected to less than lottesville curfew should "accordfing] regulatory the state more latitude in scrutiny. Carey at 847. is a slen strict See ante governing children in certain circumstances." First, Carey's proposition. plu der reed for this Charlottesville, F.Supp. Schleifer II, rality opinion was decided before Bellotti (W.D.Va.1997) injunction (preliminary reasoning have followed the of Bellot- later cases (em- analysis adopted ruling) was in final Second, Carey recog is best read as a ti II. itself added). only phasis approach, Under unique significant in nition that the state’s factors ... cut in favor of "[w]hen the Bellotti regulating will make it easier terests in children intermediate, oversight” will increased state justify greater on minors than on restrictions strict, scrutiny apply. id. at 541- Carey, rather than See S.Ct. 2010 431 U.S. at adults. (plurality opinion). Nunez, rights implicated. are problem damental See ante at 847-48. The 945-46; Qutb, narrowly 114 F.3d at F.3d at 492 & Charlottesville curfew is not tai Columbia, 6; goal. lored to forward this “Statutes affect n. Hutchins v. District of cf. (D.C.Cir.1998) 798, ing rights must be drawn with (opinion 805-10 F.3d J.) (intermediate ‘precision,’ and must be to serve scrutiny); ‘tailored’ Rogers, id. at legitimate objectives.... J., there are (Tatel, [I]f concurring judg- in the 825-27 other, ways ment) (strict goals reasonable those (Silberman, achieve scrutiny); id. at 828 constitutionally pro with lesser burden on J., dissenting) (finding that no fundamental activity, government] tected not [the right by curfew and was affected therefore way greater choose the If interference. applying age-based rational basis review to all, acts at it must choose ‘less drastic equal protection challenge).8 join I would ” Blumstein, 330, means.’ Dunn v. 405 U.S. Equal these circuits and hold that the Pro- 343, (1972) 995, 92 S.Ct. 31 L.Ed.2d 274 subjects governmental all tection Clause clas- Tucker, (quoting v. Shelton 364 U.S. impacting sifications on the fundamental con- (1960)). 247, 81 S.Ct. 5 L.Ed.2d 231 rights scrutiny. stitutional of minors to strict By restricting the freedom of minors dur- C. hours, ing curfew the ordinance treats all minors under of seventeen as a The Charlottesville curfew ordinance can- society protect threat order scrutiny strict withstand and should be community juvenile from crime. This broad Equal struck down. The Protection Clause narrowly restriction is not tailored to meet protects rights by requir- our constitutional objective prevention. of crime The ordi- government high clear a hurdle nance all though treats minors the same even regulating in before the realm of fundamen- exceedingly review, percentage small rights. scrutiny commit tal Under strict Equal crimes. The Protection Clause forbids “statutory impinging on fun- classifications [a grouping such a crude when fundamental right narrowly must damental] tailored to stake, rights limiting are at the curfew’s compelling governmental serve a interest.” Commerce, providing exceptions hours and does not di- Michigan Austin v. Chamber of shortcoming. minish this 1391, 110 S.Ct. (1990); L.Ed.2d 652 see also Memorial say This is not to that emergency curfews 250, Hosp. Maricopa County, broadly applicable that are and limited in 94 S.Ct. 39 L.Ed.2d 306 The duration are unconstitutional. Our circuit Charlottesville ordinance fails the strict scru- previously, has properly, ruled that such (and test, tiny notwithstanding its stated emergency proper measures are exercise of (1) worthy) objectives reducing juvenile See, police power. the state’s e.g., United (2) crime, promoting safety wellbeing Chalk, (4th States v. 441 F.2d 1280-83 juveniles, fostering strength- Cir.1971). Here, however, we have a curfew ening parental responsibility. provision with no sunset curfew that —a class, sweeps in a vast all minors under seventeen, law-abiding. most of whom are quite agree majority pro- I Equal permit Protection Clause does not tecting community segment society serious crime is such a kept broad to be compelling governmental interest. every night off the streets simple with the Flores, 292, 301-05, 8. Reno v. rejected 113 S.Ct. but it the minors' (1993), process indicates that strict due claim because it found no fun- scrutiny apply right should when the fundamental damental existed under the circumstances rights 1439; of minors are involved. In Flores a class case. See id. at id. cf. challenged regulation (stating of minors an INS that re- 113 S.Ct. 1439 that "the child’s quires juvenile placed rights impaired” by aliens to be in institutional fundamental INS). must not be group during pendency care approach adopted by facilities of de- the Fifth and portation proceedings guardian if a or adult rela- Ninth Circuits is therefore consistent with custody. implication tive is not scrutiny applies available to take The Court Flores' that strict recognized scrutiny applies rights that strict "when when a minor's fundamental are in the involved,” fundamental see id. at balance. prevent generalization, “We want to crime.” id. at see also Reno ACLU, tailoring requires something less Narrow 117 S.Ct. at 2346-48. Laws like the drastic. may justified one in Ginsberg thus be be they parental authority cause defer to and

2. decisionmaking. City’s objective promoting second of ordinance, however, The Charlottesville safety juveniles well-being and also paternalistically displaces pa- the exercise of scrutiny. falls short strict under This inter- by making illegal rental discretion par- for in compelling est is not this case because the ents to allow their children to move about displaces Indeed, parental authority. curfew independently night. parents at Yet are bet- majority only says City that the has maturity ter able to assess their children’s “strong” protecting youngest interest capacity judgment city for than a council. society members of from harm. See ante at may legitimately Parents decide that the best “Strong” 847-48. interests are not sufficient way permit to raise their children is to them satisfy scrutiny. Only strict compelling to be out midnight on their own after on interests suffice. Nunez, occasion. See at F.3d 952. City’s protecting stated interest words, parents other may legitimately con- minors under the is not seventeen granting clude that the risk of children some compelling here because the curfew was not independence compared is small to the bene- designed supportive parental be of the resulting fits gradual development from the recognized role. Bellotti II that “restrictions maturity judgment that is needed minors, especially supportive those of the preparatiоn responsible for a adult life. This role, parental important to the child’s parental exercise impossible discretion is ... growth maturity” chances for full under the ordinance.9 justify gov- and therefore can an increased Indeed, authority regulate protect- ernmental purposefully ordinance was de- ed activities of signed displace parental minors. See 443 U.S. at 338- discretion with added). (emphasis City S.Ct. 2781 This the will of the day Council. On the authority enacted, present govern- can be when agenda curfew was the Council’s in regulation complements following mental interest pur- said the about the curfew’s authority parent. By pose: “parental responsibility the traditional for the where- supporting parental the exercise of discre- abouts of children is the norm and tion, exist, aligns regulatory power the state legal where that does not then the parents with the interests of who have responsibility. broad sanction should enforce such Further, discretion to control the activities of their well curfew communicated ordi- parents impose community-wide children. The combined interests of ... nances stan- strengthen justifi- and the state parents unwilling therefore dard on who are unable or added). governmental regulation. cation for (Emphasis Gins- to set such limits.” role, berg, example, prohibited supporting parental the direct sale Rather than pornographic magazines supersedes to minors in or- it. It curfew reflects the parents’ strengthen governmental power der to control over their “statist notion that supersede parental authority children’s access to such material. See should all parents” 1274. S.Ct. The Court cases because some fail to exercise however, note, Parham, gov- was careful to control over their children. See displace parental authority: governmen- ernment did not U.S. at 99 S.Ct. 2493. This prohibition against paternalism “the “repugnant sales to minors does tal to American parents purchas- Consequently, not bar who so Id. desire tradition.” because the magazines attempts purpose for their to achieve children.” See its stated exception parents 9. The curfew’s sixth allows a minor to afford the discretion to allow their chil- parent run an “errand” for his signed if he carries а operate any degree indepen- dren to meeting statutory document nine criteria. supra (listing require- dence. See ments). note 1 nine 7(b)(6). exception, rigid See Code 1V— detail, with its bureaucratic demand for does not arbitrary id. at safety well-being prevent enforcement. See promoting the (citation omitted). authority parental over by displacing minors children, statutory language lacks sufficient the curfew does When upbringing of certainty expression,” id. governmental inter- “definiteness or compelling not serve 357, 103 enforcement of the law est. purely subjective is left to the decisions prosecutors, juries. id. at police, 358, Village Es 103 S.Ct. Hoffman of third stated It follows that the ordinance’s Estates, Inc., Flipside, 455 tates v. Hoffman strengthening pa- purpose fostering and 489, 498, 1186, 102 S.Ct. 71 L.Ed.2d 362 U.S. responsibility also falls short. Gins- rental Grayned Rockford, (citing v. “sup- recognize that laws berg and Bellotti II 2294, 104, 33 222 408 U.S. 92 S.Ct. L.Ed.2d II, role,” parental Bellotti 443 portive of the (1972)). guarantee Our Constitution’s due added), may justify (emphasis U.S. 638 unacceptable. process of law makes this As rights some limitation on the long recognized Court time However, displace the minors. when laws ago, by imposing primacy parental discretion certainly dangerous if “It would be norms, au- community-wide the traditional large enough legislature could set net rearing is no thority parents over child offenders, possible all it to catch and leave support any limitation on longer available to step say who the courts to inside and could attempt curfew’s rights of minors. The detained, rightfully be and who should be responsibil- strengthen parental to foster and would, extent, large. set at to some authority ity by displacing parental does not judicial legislative fnr the substitute the support compelling state interest. department government.” reasons, I that the For these would hold Kolender, 7, 103 461 U.S. at 358 n. S.Ct. 1855 satisfy fails to strict Charlottesville curfew Reese, 214, v. (quoting United States 92 U.S. Equal scrutiny thus violates the Protec- (1875)). 221, words, 23 563 In other L.Ed. tion Clause. judicial prosecutors and “[w]ell-intentioned safeguards do not neutralize the vice of a III. Bullitt, vague Baggett v. law.” Even if I could conclude that Charlottes- (1964). L.Ed.2d 377 passed scrutiny, I would ville’s curfew strict sufficiently The law itself must draw a clear adopted hold that the ordinance as is void for legal illegal for line between the and the both vagueness undеr the Due Process Clause. police our and our citizens. specifically, More I would hold ordi- “exception” is im- nance’s First Amendment B.

permissibly vague. Vagueness challenges may brought against regard a statute “on its face” without

A. conduct, specific applied” plain- “as to the conduct, grounds. the Due Process tiffs or on both Facial vagueness doctrine of statute, challenges at the “requires penal that a statute define strike heart Clause and, successful, any ap- sufficient definite if invalidate and all the criminal offense with plication challenged provision until it is ordinary people can understand ness sufficiently given in a manner a construction that clarifies prohibited what conduct is arbitrary Thompson, it. v. encourage that does not and dis U.S. Steffel (1974); criminatory v. Law 39 L.Ed.2d 505 enforcement.” Kolender cf. son, Connecticut, v. Boddie U.S. (1971) (as Although process applied). due 28 L.Ed.2d 113 L.Ed.2d 903 S.Ct. majority fa- requires satisfy require agree that a both I therefore with the statute ments, “ invalidity grounds strong special importance: vagueness cial is the second is of to be infre- legislature ‘a minimal medicine that is administered [must] establish ” disagree, I how- guidelines quently. See ante at 853. govern law enforcement’ ever, majority’s apparent society. with the belief that The threat of sanctions deter invalidating courts have discretion to avoid potently exercise almost as as the (“It facially unconstitutional statute. id. application actual of sanctions. Because Cf. preferable for is courts to demonstrate re First Amendment freedoms need breath- by entertaining challenges applica straint survive, ing space government may reg- arise”). challenges tions of a law as those only specific- ulate the area with narrow rarely Courts invalidate a law for facial ity. vagueness. This not because exer courts Button, 415, 432-33, NAACP discretionary cise restraint but because few (1963) (citations challenges satisfy high facial burden nor omitted); Keyishian footnote see also rule, mally imposed. general As a a law is Regents, 589, 604, 609, Board vague “only impermissibly on its face if [it] (1967) (“The 675, 17 L.Ed.2d 629 dan- vague in applications.” all of its See Hoff ger chilling upon effect [a] the exercise of Estates, man at 495 & n. vital First guard- must be S.Ct. 1186. against by ed clearly sensitive tools which majority ignores exсeption What the is the inform what ‍‌‌‌‌​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌‌‌​‍being pro- [individuals] is general to this rule: when “a law ‘a reaches scribed.”); Kolender, 8, 461 U.S. at 358 n. constitutionally pro substantial amount of (citing Keyishian 103 S.Ct. 1855 Button and ” conduct,’ vagueness challenges tected facial rule). support exception general Espe- “permit[ted]” plaintiff may a and attack then, cially, chilling when effects are a dan- “ being vague applied the law ‘as to con ger protected and a “substantial amount” of ” Kolender, duct other than his own.’ activity implicated, is facial challenges must (cita 8, 461 n. U.S. at 358 & 103 S.Ct. 1855 permitted. words, In other we do not (First omitted) tions Amendment and case-by-case judicial have to wait for review by regulation freedom of movement affected particular applications of the law. loitering wandering); and see also Hoff City’s regulates Because the a sub- Estates, man 455 102 U.S. S.Ct. protected activity, stantial amount of I would (recognizing 1186 general applies that rule subject hold that it is to a challenge. facial only “implicate[ to statutes that constitu ] no Supreme Court’s decision Kolender all tionally protected (emphasis conduct” add but mandates this conclusion. In Kolender ed)); Wilson, 518, 521, Gooding v. 405 U.S. the Court that a loitering held California 1103, (1972); Ap 92 S.Ct. unconstitutionally vague statute was on its State, 500, Secretary theker v. persons face. The law made it a crime for 517, 1659, 12 992 L.Ed.2d who (facial “loiter wander on the streets” to fail challenge restricting lawto interna provide travel). “credible and reliable” identifica- exception tional “logically is peace requests tion when a officer it under related and similar” to the doctrine of sub justify Terry overbreadth, Kolender, circumstances would stantial see stop. 1855, See 461 S.Ct. at 358 n. in that S.Ct. is Ohio, generally Terry 1855. See chilling vague necessitated effect that (1968), protected laws can have on L.Ed.2d 889 the exercise of permitted later cases. The Court freedoms. As the Court has ex facial plained, challenge because it found that the “law a substantial amount of constitu- reache[d] objectionable quality vagueness conduct,” Kolender, protected tionally see depend upon

overbreadth does absence (internal U.S. at 358 n. 103 S.Ct. 1855 criminally of fan- notice to a accused or omitted), quotation notwithstanding marks upon delegation legislative unсhanneled dissenting argument that the law was not powers, upon danger but of tolerating, freedoms, “impermissibly vague applica- in all of in the area of First Amendment facially penal susceptible of a tions” and could not be attacked be- existence statute sweeping improper application. cause it had “unmistakable core that forbidden,” person These freedoms are delicate and vulnera- reasonable would know is ble, 370, 371-72, supremely precious as well as (emphasis our id. at as-applied added). rights.10 Deferring review for the Court to led The concern “ impermissibly chilling risks ‘po- challenges challenge was the law’s the facial allow amount of constitu suppressing First exercise of a substantial arbitrarily tential for ” tionally protected activity. 11126 Balti and the “constitution- Amendment liberties’ Cf. Blvd., County, George’s v. Prince id. at more Inc. of movement.” See right al to freedom (4th Cir.1995) (en banc) v. 58 F.3d 993-94 (quoting Shuttlesworth 103 S.Ct. 1855 permit” must facial chal (ruling that “courts Birmingham, 382 U.S. (1965)). chilling lenge significant there is risk of concerns when The same 15 L.Ed.2d “ speech chill ‘can because in this case. The main First the curfew underlie effectively only through a facial Amend- be alleviated First difference Charlottesville’s ” below, but, Lakewood v. explain challenge’ (quoting “exception,” as I ment Co., Publishing impermissibly vague Plain Dealer exception itself (1988))). save the statute from therefore cannot Indeed, why curfew is in this I now turn to Charlottesville’s challenge. the need facial vagueness. stronger even than void case for facial review is the curfew ordi- Kolender because law-abiding minors under applies nance to all C. Kolender, The law of seventeen. [unconstitutionally] “A law is considered contrast, required credible and reliable person intelligence if must vague ‘a of normal only peace had when officers identification meaning differ as to its guess at its is, justifiable Terry stop, that already made a ” Administrator, application.’ Elliott v. Ani temporarily a sus- they after had detained Serv., Inspection mal Plant Health 990 & pect of “a reasonable and articulable because Cir.1993) (4th 140, 145 (quoting F.2d Connal person en- suspicion [wa]s that seized 385, 391, Constr., ly 46 269 U.S. General activity,” Georgia, in Reid v. gaged criminal (1926)); 126, 322 see also S.Ct. 70 L.Ed. 440, 2752, 438, 100 S.Ct. 65 L.Ed.2d 448 U.S. Lanier, 259, 117 United States (1980) curiam) (following Terry). (per 890 432 S.Ct. clear that a Accordingly, Kolender makes (unanimous decision); Roberts v. United in case. challenge appropriate is this facial 609, 629, 104 Jaycees, States S.Ct. 3244, Although asserting L.Ed.2d 462 this majority errs in that be- 82 The applies generally vagueness to chal activities” are standard cause “core First Amendment ordinance, lenges, degree vagueness of protected by “marginal “[t]he cases” depends part ... applied, is Constitution tolerates challenged as the statute enactment,” of Es assuming that “core” the nature see ante at 854. Even Hoffman 498, tates, ap- at 1186. When protected, argument S.Ct. activities are regulation” rejected a involves the “economic pears parallel dissenting to view statute business, “subject a less strict proper inquiry of it is to by Kolender. The is Id. at 102 S.Ct. 1186. protected vagueness values are but test.” whether some core require Similarly, if a law includes a scienter the curfew “reaches ‘a substantial whether ment, degree clarity constitutionally protected con- this too will relax the amount of ” Kolender, duct,’ required “mitigate scienter can a at 358 n. because U.S. Hoffman, vagueness.” id. at 102 S.Ct. 455 U.S. at law’s (quoting S.Ct. 1855 1186). hand, the other “the standard The First Amendment 1186. On certainty higher” impose that is for statutes protects a substantial amount conduct criminal, civil, religious opposed sanctions. See “political protest and addition to Kolender, vagueness 461 U.S. at 358 n. worship,” ante at and the Estates, 498-99, supra protect these at applied must be doctrine Hoffman by 497, challenged at majority's do law. See 455 U.S. 10. citations to Estates Hoffman 1186; Kolender, support the conclusion that federal courts not may 461 U.S. at 358 n. as-applied challenges "marginal wait for approach A wait-and-see is cases,” clearly see ante at 854. Estates chilling justified only Hoffman when there is no risk of analysis to those cases in which "no limits protected activity. amount of substantial implicated constitutionally protected conduct” is standard, important rights. The last and “most S.Ct. 1186. Under this the curfew’s affecting [degree clarity “exception” First factor of] makes the or- a law impermissibly vague. By the Constitution demands of is whether dinance defining exception terms, it vague threatens inhibit exercise of consti- and ambiguous tutionally protected rights.” imрermissibly persons Id. at ordinance forces does, If “a stringent intelligence guess S.Ct. 1186. it more of normal as to what vagueness apply” protect- illegal provide test should so that conduct is fails minimal id.; activity guidelines will ed not be chilled. See see for law enforcement. Goguen, also Smith v. vagueness First Amendment (1974) (“Where exception Indeed, intuitively plain. is its lan- scope, by statute’s literal unaided narrow- guage anything is but clear. What are interpretation, capable court state rights”? “First Amendment What is consid- reaching expression sheltered the First “speech”? ered to be Does it include written

Amendment, [vagueness] doctrine de- expressive communication? What of conduct greater degree specificity mands a than in that does not involve oral or written commu- contexts.”); Grayned, other types speech nication? “protect- What (“[W]here vague upon statute sen- ‘abut[s] speech”? ed” “freedom of Is commercial sitive areas of basic First Amendment free- so, speech protected? If to what extent? doms,’ ‘operates to inhibit the exercise What is the “free religion? exercise” of And ” (second and third altera- [those] freedoms.’ “right assembly”? what of the Do two Button, original)); tions in 371 U.S. at “right” friends have the to “assemble” or (standard 83 S.Ct. 328 in the area “strict of meet at a says nothing coffeehouse? This expression”). point free These all factors general rights (e.g., First Amendment the conclusion that the Charlottesville curfew association, press, petition) City’s vagueness must be evaluated for under a exception leaves ques- unmentioned. The standard, strict standard. I Under courts, tions above enough are difficult would hold that the ordinance’s First Amend- Congress, scholars, and constitutional let exception ment violates the Due Process legal alone for someone with no training. Clause.11 given, they And when answers are are often imprecise specifics and turn on the of a case

D. balancing many and a of factors. Further- more, jurisprudence First Amendment is a eight statutory The last of the curfew’s complicated body vast grows of law that exceptions public allows a minor to remain in result, passing day. with each As a criminal during curfew hours when “the minor is ex- by simply conduct cannot be defined refer- ercising First rights protected (First Amendment) ring to the title or subti- Constitution, by the United States such as (speech assembly) particular tle or right. religion, the free exercise of freedom of speech right assembly.” and the Although Court has not ad- 7(b)(8). § exception Code Because this dressed the First Amendment issue before 17— operates protected conduct, us, in an area of it involving its decisions statutes that define satisfy vagueness must a strict by standard so criminal referring princi- conduct to the ples as not to chill the exercise of process” constitutional of constitutional “due simply 11. Federal courts do agency prof- not look to the statu state or court enforcement has " Racism, tory language vague. Against to determine if the law is fered.’ See Ward v. Rock 491 involved, 781, 795-96, 2746, If a federal statute is a federal court 109 S.Ct. 105 L.Ed.2d (1989) Estates, disputed provision (quoting construe the to remove 455 U.S. at Hoffman 5, 1186). vagueness. its narrowing See United States v. 12 494 n. 102 S.Ct. If no 200-ft. Film, 123, state, however, Super interpretation provided by Reels 8mm. 413 U.S. 130 n. 7, 2665, (1973); power remedy 93 S.Ct. 37 L.Ed.2d 500 a federal court is "without cf. FBI, 468, (5lh by v. giving constitutionally CISPES 770 F.2d 473-75 Cir. [statute's] [it] defects 1985) Oradell, (construing precise Hynes Mayor federal statute to avoid over- content.” v. See Likewise, breadth). provision when a state 425 U.S. 96 S.Ct. 48 L.Ed.2d 243 face, (1976); challenged vague Goguen, on its a federal court v. see also Smith “ any limiting must 'consider construction that a 94 S.Ct. necessary for criminal statutes under ty Like the are instructive. “equal protection” government. Congress did system of our principles of “freedom First Amendment punish but what it desired to religion,” not define “free exercise speech” and the comprehensive to a law compli- referred the citizen protection are equal process and due library to ascertain what acts concepts in order constitutional cated and nuanced stat- prohibited. To enforce such a were general definition. susceptible that are practice sanctioning like ute would be rights likewise de- of these The existence law, “published the but Caligula who a case and a balanc- specifics of pends on the hand, show, very in a small I will was written involved. As ing of the interests corner, so that no one could posted up opinions in Screws Supreme Court’s copy of it.” States, make a United opinion), (plurality United L.Ed. 1495 Suetonius, (quoting Id. at 753-55, Guest, 278). Stаtes Indeed, Lives the Twelve Caesars (1966), later S.Ct. § that 20’s use of justices indicated seven constitutional “due cases demonstrate criminal conduct process” to define “due protection” are inherent- “equal process” and unconstitutionally vague have been would criminal ly vague used to define too to be ambig- something mitigate else to without carefully defined scienter without a conduct princi- incorporation of constitutional uous at least as applies requirement. (§ 20 must ples. See id. S.Ct. more, much, if not force to Charlottesville’s require- with narrow scienter be construed to define First Amendment mention of the grave ques- ment to “avoid way exception. by criminal conduct (Roberts, tions”); id. at (“[a]ll J., justices agreed dissenting) but two” upheld un- a statute In Screws the Court issue). However, plurality con- on this law enforcement officers which several der by the statute could be saved cluded illegally depriving a convicted of had been “willfully” require specific construing process” without “due prisoner of his life deprive of a purposefully another intent 1031. law. by the specific right made definite federal prosecuted under 18 The defendants were “ and laws of express terms of Constitution 20,12 illegal made it to ‘will- which U.S.C. “ ” inter- or the decisions the United States any rights, privi- fully’ deprive another ‘of 100-05, 65 preting them. See id. at protected leges, or immunities secured Thus, “recognized that the ex- Screws of the United the Constitution and laws ” process pro- pansive language of due law. See id. under the color of state States’ is, judicial review when vides a basis provision They the Court that this argued to 242, gener- § incorporated by reference into vague applied to their impermissibly was task of ally ill-suited to the far different depriving the deceased of convictions for warning scope of crimi- giving fair about provided “no process” the law “due because (unan- Lanier, liability,” 117 S.Ct. at 1225 nal at guilt.” See id. ascertainable standard decision), a strict but that the use of imous 94-95, Douglas, writ- 1031. Justice sufficiently miti- requirement scienter could four-justice plurality, said that ing for a ambiguity. gate this are, sure, courts to be the decisions of the to ascertaining The Court in Guest relied Screws for a source of reference challenge reject vagueness to a concеpt pro- a similar specific due content conspiracy deprive black incorpo- prosecution for to the Act would cess. But even so rights protected by Equal body changing citizens of by large rate reference again empha- always The Court Protection Clause. law. That law is and uncertain rules, specific requirement intent expressible sized that the specific reducible to § terms, § many like that of removed only and turns 18 U.S.C. general in vagueness. See problem of the statute’s particular of a case. times on the facts Guest, id. body Accordingly, argued it is that such a (Brennan, J., concurring specifici- legal principles lacks the basic § predecessor § U.S.C. discussed 12. 18 U.S.C. 20 was infra. part) (incorporation provi

in of constitutional constitutionally protected activity, while “brings §§ sions 241 close to the danger fact, line do not. those sec- being vagueness” “stringent void for but designed punish tions are those who will- requirement fully deprive scienter saves from condem conspire [it] deprive others nation”); see also as, United States Kozmin rights, constitutional example, for in ski, Lanier, 101 United States where the defen- (1988) (tension dant, require (in L.Ed.2d 788 between judge, sexually a state assaulted his office) guilt” ment of “definite standard of and “in- employees several and others who had corporat[ion] by large body reference a Lanier, of business before him. 117 S.Ct. at potentially evolving federal law” is resolved 1222-23. Such conduct lies far outside of the requirement). with strict scienter constitutionally realm of protected action, §§ and therefore 241 and 242 do not have to Recently, a unanimous in Court vagueness meet the strict ap- standard that Lanier principles reiterated the established plies protected when activity is involved. in again Screws and The recog- Guest. Court curfew, however, does. Consequently, nized that “in of describing specific lieu the ordinance scrutiny must survive under a forbids, general conduct it [the] terms [of vagueness standard much more strict than §§ incorporate 241 and 242] applied that in Screws and Guest. Under law reference.... The result is that light standard and in of the absence of a neither the good many statutes nor a of their capable scienter element saving the ordi- constitutional referents range delineatе the nance, I would hold that the First Amend- particularity.” forbidden conduct with Id. exception ment ordinance are at 1224. void Consequently, this “affront to the vagueness.13 process] requirement” [due of fair notice is permissible only made when “willful viola- testimony of Charlottesville’s Chief of (or deprive conspire deprive) tors” others proves Police ambiguity. statute’s When specific’ by “have been ‘made fifteen-year-olds asked whether two violate interpretations.” the text or settled See id. discussing politics ordinance in a cof- Screws, (quoting at 1225 325 U.S. at shop curfew, during said, fee the Chief 1031). ‘certainly violators “[W]illful indoors, public location, “You’re it’s a I ... position say they no had no ade- technically think under the ordinance it ” quate advance notice’ of the definition of be a I violation. doubt whether we would Screws, (quoting crime. Id. 325 U.S. at Similarly, deal with it.” when asked if a 1031). 105, 65 S.Ct. fifteen-year-old plays who in a band a local Screws, Guest, Like the statutes restaurant after curfew hours violates the Lanier, the Charlottesville curfew’s First paid curfew when he is not perfor- for the exception incorporates mance, large answered, the Chief “I think that growing body of law that technically is not reducible possibl[y] [the minor] viola- specific rules balancing However, and that turn on a tion of the ordinance.” “the officer of numerous factors. obviously Unlike the federal would have to make a decision statutes, however, City’s they’re curfew ordi- about whether in violation or not. nance has no requirement scienter that could And I believe there’s some discretion al- mitigate vagueness the inherent of First lowed.” It is this discretion combined with jurisprudence. Amendment important, Most the failure to with specificity define what though, the regulates in illegal areas involv- conduct is that makes the un- statute majority says 13. The misses the mark when it the ordinance makes it a crime for minors to requirement necessarily that a scienter public would exercising remain in when not First narrow, expand, 7(b), (b)(8). and rights. § not the breadth of Char- Amendment id. See 17— (b)(8) (b)(8) lottesville's curfew plainly incorporates because subsection Subsection thus the "provides exception liability" scope and does First Amendment to define the of criminal affirmatively not define criminal conduct. See conduct. Even whеn a law is drafted to include crime, ante at exceptions 853 n. *. The curfew defining ordinance uses in a scienter ele- (b) eight exceptions section applied provision its to define what ment that is to the criminal as 17-7(b). (and illegal. City just conduct See Code exceptions) a whole not its can reduce (b)(8) respect particular, objectionable With vagueness subsection of the law. Univ., Regents Corp. v. danger chilling The constitutional. activity protected constitutionally 79 S.Ct. exercise of (Frankfurter, J., Although uncertainty concurring). associated we of the arises because exception.14 drafting may “appreciate Amendment the difficulties the First with laws,” stat- require must that all precise we supporting its rea majority errs standards for clari- utes meet constitutional city appear councils soning the fact with Hill, City ty. Houston a hard a rock and placed “between to be it is true that While place,” ante at 853-54. otherwise, forgo we would If we did al exceptions will almost curfews without of the Due duty to enforce the mandates our upon infringe substan ways impermissibly Process Clause.15 that curfews rights and constitutional tive subject vagueness exceptions be conclusion, majori- logical Taken to its this ordinance is challenges, invalidation immunize all statutes ty’s reasoning would by our Constitution. “Our still mandated involving the exercise of regulating conduct maximize individ designed to Constitution they con- rights whenever First Amendment a framework of ordered within ual freedoms “exception.” Be- First Amendment tain a on those free liberty. Statutory limitations impermis- not be provisions such would cause authority for substantive are examined doms majority’s analysis, sibly vague under or as for definiteness content as well from both sub- be immune statutes would Kolender, certainty expression.” challenges. vagueness Substan- stantive added); (emphasis see 103 S.Ct. 1855 cannot, according to its own tively the statute Diego, 114 F.3d Nunez v. San also fact, terms, constitution. violate the Cir.1997) (9th (recognizing that 943-44 protections. the Constitution’s incorporates prob vagueness avoid interpreting curfew to facial attacks could never upshot is that “may make Due Process Clause lems under containing that statutes these brought pass the statute to con it more difficult for challenged only they exceptions could be grounds”). on substantive stitutional muster with the applied. squarely conflicts draftsmanship “[Ljegislative obvi bodies long-standing concern with Supreme Court’s difficulty as do the ously have the same constitutionally protect- potential chill of de judicial interpretation. Nevertheless activity by mere existence of created ed difficulties, courts must do their spite the potential for and the vague criminal statutes vague or not the to determine whether best arbitrary enforcement. ‘that men of is of such a character ness reasons, I hold that the For these would necessarily guess intelligence must common ” “exception” York, ren- First Amendment curfew’s v. New meaning.’ Winters impermissibly vague on ders ordinance 92 L.Ed. 840 is amended its face. Until the ordinance (1948); Kingsley Int’l Pictures see also regu- restriction on its substantive consequence that the 14. It is of no constitutional Indeed, majority's question latory authority. citation [as that "if there’s a Chief testified (5th Cir.1985), FBI, exception ap F.2d 468 to CISPES v. First Amendment whether position. ante at 853-54. plied,] go that it was down on side contradicts its we would Cf. activity” provision recognized can- kind of that “such a valid Constitutional CISPES substantively operate the Commonwealth Attor “would consult with to save an otherwise ney city attorney's whether it office sec 770 F.2d at 474. A state- invalid statute.” See prosecutors and exception was or not.” "Well-intentioned ment similar to the First judicial safeguards case, however, the vice of a do not neutralize used the Fifth was in this Baggett, vague 377 U.S. at law.” ‍‌‌‌‌​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌‌‌​‍Congressional intenl and determine Circuit to provision to avoid guide its construction Here, though, id. overbreadth. See substantial statute, local, federal, not a are faced with a we majority's disagree with the claim I also 15. authority to "fortifies, we are without the and therefore exception rather First Amendment might provide limiting save weakens, construction values.” See than First Amendment Hynes, 425 U.S. at the ordinance. See Amendment at 853-54. Because First ante exception The First city S.Ct. 1755. diminished ordi- rights can never be Const, VI, nance, First Amendment val- City's little to advance thus does art. cl. see U.S. ues. exception nothing a well-settled but restate does a construction given Council sufficiently its un- courts that reduces state vagueness, its enforcement guarantee of with the constitutional

conflicts process of law.

due

IV. sum, equal protection

In I would hold that regulate

challenges by minors to laws rights must

the area of fundamental be sub-

ject my opinion scrutiny. to strict

Charlottesville ordinance fails standard. equal if

Even the ordinance survived however, it

protection challenge, would be present form. The

unconstitutional exception is im-

curfew’s First Amendment

permissibly vague in of the Due violation reasons, I

Process Clause. For these re-

spectfully dissent. Gregory Welsh; Larry SMITH;

Andrea

Hornstein, Petitioners-Appellees, CROMER, Respondent-Appellant.

James

No. 97-2192. Appeals,

United States Court of

Fourth Circuit.

Argued 1998. Jan.

Decided Oct.

Case Details

Case Name: Schleifer Ex Rel. Schleifer v. City of Charlottesville

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 20, 1998

Citation: 159 F.3d 843

Docket Number: 97-1723

Court Abbreviation: 4th Cir.