Massachusetts Supreme Judicial Court Finds Criminal Enforcement Provisions of Local Curfew Ordinance Unconstitutional

Massachusetts Supreme Judicial Court Finds Criminal Enforcement Provisions of Local Curfew Ordinance Unconstitutional

By Jessica DeWitt Guobadia

Many communities have enacted juvenile curfew laws or ordinances. While the specifics of the laws vary across the country, the underlying goal is to protect both the community and the juvenile.

In 1994, the City of Lowell, Massachusetts noticed a great increase in juvenile crimes. In order to address this issue, the City enacted a juvenile curfew ordinance. Under the ordinance, juveniles were prohibited from being in the public from 11 p.m. until 5 a.m., seven days a week. Exceptions were made for legally married juveniles and juveniles on errands at the direction of their parent or guardian; in vehicles involved in interstate travel; engaged in or traveling to employment activities; attending certain school, religious, or recreational activities; or exercising rights protected by the First Amendment to the U.S. Constitution. Police finding juveniles in violation of the ordinance were given the option of arresting them or issuing civil notices for them to appear in court.

Although the City claims that the police department rarely arrested juveniles under this ordinance, two juveniles were arrested on separate occasions for violating it. When the issue was brought before Middlesex Juvenile Court, Judge Jay Blitzman decided to present it as a question of first impression to the Massachusetts Appeals Court. However, on application of the juveniles, the Massachusetts Supreme Judicial Court (SJC) accepted the case for direct appellate review. Commonwealth v. Weston W. --- Mass.----, 2009 Mass. LEXIS 647 (2009).

In determining the validity of the Lowell ordinance, the SJC took a serious look at how other courts had viewed curfew ordinances. It noted that the U.S. Court of Appeals for the District of Columbia Circuit had found the issue to be whether minors “have a fundamental right to be on the streets at night without adult supervision”; using a rational basis test, it had determined that they do not. Hutchins v. District of Columbia, 188 F.3d 531, 536-537. Other appeals courts had applied strict scrutiny and had found curfews to implicate a fundamental right (presumably of some sort of travel). Nunez v. San Diego, 114 F.3d 935 (9^th Cir. 1997); Qutb v. Strauss, 11 F.3d 488, 492 (5^th Cir. 1993). Finally, the SJC noted that some courts have applied intermediate scrutiny to a review of the ordinances, taking the stance that minors have “qualified” rights. Schleifer v. Charlottesville, 159 F.3d 843 (4^th Cir. 1998)

In the first step to partially overruling the statute, the SJC determined that the Massachusetts Declaration of Rights guarantees a fundamental right to move freely within the state, without police interference, as the Court considered this to be “inherent in the right to life, liberty, and happiness.” The Court made no blanket exclusion of juveniles from these rights.

Second, the SJC decided to apply strict scrutiny to the Lowell ordinance. In so doing, it refused to apply a lower standard of review for laws restricting the movement of juveniles, thereby rejecting the more traditional rationale that the rights of minors are not coextensive with or are weaker than those afforded to adults. To mitigate what may be considered the negative effects of a higher standard of review, the Court specifically recognized that the “government has a countervailing compelling interest in ‘protect[ing] children from actual or potential harm,’ an interest that often justifies restrictions that could not be sustained when applied to the fundamental rights of adults.” Therefore, in reviewing the Lowell curfew ordinance, the SJC considered whether the government’s interest is more compelling than that of juveniles, not “whether the rights involved are less fundamental.”

The SJC determined that the curfew was properly tailored to achieve the legitimate goals of the ordinance and that the curfew was not enacted for invalid or improper purposes. In fact, the SJC noted that the ordinance was adopted in response to a significant spike in juvenile arrests, after months of “planning, debating, and researching models from other cities.” Further, the Court concluded that the civil enforcement mechanism was “reasonable, balanced, and narrowly tailored, especially in light of the government’s need for flexibility when acting to protect children.” Under the ordinance, an officer can approach a person who appears to be a minor, ask for identification, and if the person is under age, the officer may cite him or her and must notify the parent or guardian. The SJC viewed this as a deterrent to criminal activity, while ensuring the safety of the minor and the public. The Court also found it significant that repeat citations may lead to the identification of a minor in need of services.

The criminal enforcement mechanism, however, was found to be unconstitutional. In explaining this finding, the Court noted potential unintentional consequences, such as an adjudication as a delinquent child which would permit the juvenile court to commit the minor to the custody of the Department of Youth Service until age eighteen. This was of concern to the Court, since it had been reported that, in some cases, bail requests were made for youth arraigned for curfew ordinance arrests and, in more serious cases, the juvenile was found delinquent, placed on probation, and then faced commitment for probation violations. The SJC found this to be an “extraordinary and unnecessary response” to what amounted to “essentially a status offense.”

In considering whether the criminal provision was too severe, the Court sought guidance from the legislature, which had specifically rejected criminal sanctions for status offenses falling under the purview of the child in need of service statute. The goal in doing this was to focus on “providing nonpunitive care to address the problem of certain children” and “signified a switch from criminalizing truancy and children in need of services to providing protective care for children.” By criminalizing a curfew violation, the ordinance threatened to undermine this legislative goal.

Furthermore, the SJC held that, since Lowell failed to meet its burden to show that the criminal penalties provided an increased benefit over the civil enforcement mechanisms of the ordinance, the City failed to show that the criminal prongs met the least restrictive means test. The City only offered conjecture, stating that a “minor could potentially receive community service as part of his or her probationary sentence” and that the service “may deter a minor from getting into further trouble with law enforcement and possibly prevent a minor from engaging in criminal conduct as an adult.” This, according to the Court, was insufficient proof to show that the criminal enforcement prong was constitutional.

In his concurrence, Justice Spina asserted that it was unnecessary for the Court to define a new fundamental right to “free movement” and that the decision should have been decided on substantive due process considerations. However, what is important in the concurrence is the recognition that strict scrutiny is appropriate because of the “liberty lost by the imposition of the curfew and the threat of institutionalization after commitment to the Department of Youth Services,” even if there is no fundamental right to “free movement,” which some might argue does not apply to juveniles, even in the most narrow sense. Given the effect on the fundamental right of liberty, which is necessarily imposed by a form of house arrest permitted under the curfew, then a higher level should be imposed.

This decision is definitely a step in the right direction. It should serve to encourage advocates to stress to the judiciary, legislature, and the community the importance of protecting juveniles through non-criminal means for status offenses.