Opinions below

SUMMARY OF THE ARGUMENT

Equal Protection

The Curfew Act unreasonably burdens minors’ fundamental right of free

movement and violates their due process rights under the Equal Protection Clause of the Fourteenth Amendment.  Freedom of movement is a fundamental right deeply rooted in our nation’s history, common law tradition, and early precedent.  This right is also basic in our conception of personal liberty and instrumental to the exercise of the fundamental rights of expression and interstate travel.  The Curfew Act strips minors of this fundamental right central to personal liberty, and minors have no lesser interests in free movement crucial to self-autonomy than do adults.

Minors’ fundamental right of free movement is coextensive with that of adults in the context of the Ames Curfew. Ames cannot justify differentiating minors’ and adults’ right of freedom of movement. Two considerations lead inexorably to the conclusion that the proper standard of review for the juvenile curfew is strict scrutiny: (1) Ames’s interest in regulating minors’ rights is lessened and counterbalanced in the context of full parental custody and; (2) Ames’s juvenile curfew fails to implicate concerns justifying more government regulation over minors.

The Curfew Act does not survive strict scrutiny because Ames has not shown that the Act is narrowly tailored to accomplish the State’s interest. The Curfew Act fails to survive because the nexus between Ames’s regulatory interest and the Act is inadequate and because a blanket curfew is not the least restrictive means available to accomplish the State’s goals.

State Action

Amesville Playland enforced the Ames curfew pursuant to a state statutory mandate and detained McNeil and Perez through joint action with the state. As a result, Playland “may be fairly said to be state actor” acting “under color of state law” for purposes of 42 U.S.C. § 1983. The fact-bound approach to the state action inquiry reveals a significant private-state nexus. The Court should reverse summary judgment.

The evidence shows that the Curfew Act coerces Playland to enforce the curfew, triggering Playland’s role as state actor. The statute coerces Playland by mandating that it enforce the curfew under penalty of fine. On July 26, 2003, Playland, through its owner Stanley Yaznetz, enforced the curfew against McNeil and Perez by detaining them and by involving the police. The Curfew Act pressures Playland to act for the state.

In addition to its coercive force, the Curfew Act prompts joint action between Playland and the Amesville police. Playland and the police acted in concert because Yaznetz forcibly detained McNeil and Perez and called for police assistance, because the police relied on Yazentz’s word instead of independently investigating the circumstances of the detention, and because the police and Yaznetz worked towards the same goal of curfew enforcement. In addition, Playland and the police had cooperated to detain curfew violators at least eight times before, and their support and reliance upon each other indicate a customary plan. By demonstrating concerted action and a customary plan, McNeil and Perez present sufficient evidence of joint action to raise an issue of material fact.

Viewed in totality, a reasonable jury could find Playland to be a state actor. A flexible approach based partly on normative judgments permeates the entire state action inquiry. Enforcing the curfew against McNeil and Perez involved a web of relationships between Playland and the police and resulted in Playland’s implementation of Ames’s public policy. A jury should be allowed to weigh the facts and vindicate McNeil and Perez’s liberties as § 1983 requires.

ARGUMENT

I. The Ames juvenile curfew act infringes ON minors’ fundamental right to free movement in violation of the equal protection clause.

The Fourteenth Amendment declares that no State may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Based on history and implicit concepts of liberty, certain freedoms rise to the level of fundamental rights and deserve heightened constitutional protection. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997). The Equal Protection Clause bars classifications that unduly burden a group’s exercise of a fundamental right unless they are narrowly tailored to serve a compelling government interest. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978). Freedom of movement is a liberty interest at the core of Equal Protection, and the Curfew Act restricts minors’ exercise of this right without advancing Ames’s asserted interests in violation of the Fourteenth Amendment.

A. Ames’s Statewide Juvenile Curfew Unduly Burdens McNeil and Perez’s Fundamental Rights to Free Movement.

The fundamental rights analysis in this case begins with a “careful description” of the right at issue. Glucksberg, 521 U.S. at 721 (internal quotation marks omitted). Courts then decide if that right is fundamental based on tradition and implicit concepts of ordered liberty. See id. The freedom of movement in public is a fundamental right, and the Curfew Act impermissibly burdens this right.

1. The Constitution Protects a Carefully Described Right of Free Movement.

The right of free movement is a “carefully described” right. Courts define the relevant liberty interests implicated by juvenile curfews in different ways. For example, the Ninth Circuit described the liberty interest as the “right of free movement and the right to travel.” Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997). The “right of free movement” at issue in this case is a more careful description of the liberty interests involved than the rights at issue in Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998). Id. at 846-47 (making a broad appeal to minors’ “constitutional liberties”). Defining the right in this way satisfies the “careful description” requirement in Glucksberg and circumscribes the analysis to a specific liberty interest deeply rooted in history.

2. A Fundamental Right of Free Movement Is Deeply Rooted in Tradition and Implicit in the Concept of Ordered Liberty.

This right of free movement is a fundamental right “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (citations and internal quotation marks omitted). Since “the touchstone of due process is protection of the individual against arbitrary action of government,” intrusion on the right of free movement demands heightened scrutiny. County of Sacramento v. Lewis, 523 U.S. 833 (1998) (citation and internal quotation marks omitted).

The right at issue is “deeply rooted” in our common law heritage and Supreme Court precedent. In his Commentaries on the Laws of England, William Blackstone noted, “the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct.” William Blackstone, 1 Commentaries *134. This recognition of a right of free movement was widely accepted among our nation’s earliest settlers. See Zechariah Chafee, Jr., Three Human Rights in the Constitution 187 (1956) (recognizing the “strong and steadfast desire of the Englishmen who came to America and of the many generations born in the colonies for freedom of movement across frontiers in either direction and inside frontiers”).

The earliest Supreme Court precedent regarding the right to travel indicates that this common law conception of free movement was implicitly accepted even as the Court contemplated the more specific right of interstate travel. The Court first recognized a right to interstate travel in Crandall v. Nevada, 73 U.S. 35 (1868), by asserting, “[w]e are all citizens of the United States; and … must have the right to pass and repass through every part of it without interruption, as freely as in our own States.” Id. at 49 (quoting Passenger Cases, 48 U.S. (7 How.) 283, 492 (1849) (Taney, C.J., dissenting)) (emphasis added). This case thus extrapolated an interstate travel right from the underlying right of free movement. More recent Supreme Court cases also recognize the historical underpinnings of the free movement right. In City of Chicago v. Morales, 527 U.S. 41 (1999), the Court held that an anti-loitering statute was unconstitutional and reasoned, “it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage.” Id. at 54 (plurality opinion) (internal quotation marks omitted); see also Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972) (describing wandering and strolling as “historically part of the amenities of life”).

The right of free movement is also “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). The Court has long recognized the existence of unenumerated fundamental rights. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (recognizing the right to marry). Although the right to interstate travel is not explicitly mentioned in the Constitution, the Court “long ago” recognized that “our constitutional concepts of personal liberty” require a right to travel “throughout the length and breadth of our land uninhibited by statutes … which unreasonably burden or restrict this movement.” Shapiro v. Thompson, 394 U.S. 618, 629 (1969).

There is no logical distinction between the right of interstate travel recognized by Shapiro and the right of free movement. The personal autonomy implicated in the freedom to move “throughout the length and breadth of our land” is no weaker when crossing the street than when crossing state borders. In King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2d Cir. 1971), a local residency requirement covered both a plaintiff who migrated from outside the state and plaintiffs who migrated from inside the state. Id. at 647. In striking down the provision, the court refused to distinguish intrastate travel from interstate travel, reasoning that it would be “meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.” Id. at 648. Similarly, it would be a “meaningless” distinction for Ames to bar minors from crossing the street but permit them to cross the state border – the constitutional right to travel cannot die at state borders.¹

The right to move freely is also implicit in the concept of ordered liberty because it is instrumental to the exercise of other rights. See Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002) (recognizing a “right to travel locally through public spaces and roadways” due to the “tremendous practical significance of … [this] everyday right, a right we depend on to carry out our daily life activities”). It is impossible to imagine a right of association or expression in public fora without an implicit protection for the right to move freely. See Aptheker v. Sec’y of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring) (“[Freedom of movement] often makes all other rights meaningful …. Once the right to travel is curtailed, all other rights suffer, just as when [a] curfew or home detention is placed on a person.”). Protection of other fundamental rights compels the recognition of a right of free movement.

The Court’s language in other contexts also reveals that free movement is implicit in ordered liberty. For example, Morales struck down an anti-loitering provision and reasoned, “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment … and part of our heritage.” 527 U.S. at 53 (internal quotation marks omitted); Kolender v. Lawson, 461 U.S. 352, 358 (1983) (noting that a California vagrancy statute “implicates consideration of the constitutional right to freedom of movement”). Because this right is “deeply rooted” in our nation’s history and implicit in the concept of “ordered liberty,” freedom of movement is a fundamental right.

3. The Statewide Curfew Places an Undue Burden on the Exercise of This Fundamental Right, Triggering Strict Scrutiny.

Because the Curfew Act places an “unreasonable burden” on the right of free movement, strict scrutiny should be applied to the statute. Shapiro, 394 U.S. at 629; see also Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992) (applying strict scrutiny when a statute places an “undue burden” on a fundamental right). The curfew directly restricts a minor’s right of free movement and, with a few exceptions, bars a minor’s presence in public places for a quarter of each day. The curfew restrictions here are more than incidental burdens to travel. Cf. Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707, 714 (1972) (upholding an airport tax). It is apparent that a general curfew covering adults would be considered an “unreasonable burden” on freedom of movement. See Bykofsky v. Borough of Middletown, 429 U.S. 964, 965 (1976) (Marshall, J., dissenting). The Curfew Act also constructs a “substantial obstacle” to this fundamental right that demands strict scrutiny. Casey, 505 U.S. at 846.

B. Minors’ Fundamental Right of Free Movement Is Coextensive with Adults in the Context of the Ames Curfew.

Absent a showing by Ames that minors’ fundamental right of free movement should be treated differently from that of adults, strict scrutiny is required. First, whether minors’ fundamental rights are coextensive with those of adults should be considered in light of the role parental custody plays in limiting state authority over children. Second, the state must justify differential treatment of minors and adults by implicating the three factors enumerated in Bellotti v. Baird, 443 U.S. 622 (1979): (1) the peculiar vulnerability of children; (2) their informed capacity for important decisions, and (3) deference to the parental role. Id. at 634.

1. Ames’s Authority to Regulate Minors’ Rights by Promulgating a Juvenile Curfew Is Lessened by Full and Effective Parental Custody.

Parental authority over minors limits the extent to which the state can regulate minors’ conduct. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Therefore, the Bellotti factors that the Court recognizes as justifying differential treatment of minors’ rights must be analyzed through the lens of parents’ custodial role. There are three possible custodial relationships: (1) parental custody; (2) delegated custody; and (3) abdicated custody. Ames does not meet its burden to prove that minors deserve less protection than adults under this framework.

The focus on parents’ custodial role is consistent with Supreme Court precedent determining the extent of minors’ rights given the context of state versus parental authority. When balancing the autonomous constitutional rights of minors and the state’s prerogative to regulate conduct, a court should account for the parent’s authority, which interposes itself between the state and the child. See Pierce v. Soc’y of the Sisters, 268 U.S. 510, 530-35 (1925) (rejecting state-mandated public education as an unconstitutional intrusion on the parental right to control their children’s upbringing).

The Curfew Act’s restriction of minors’ rights usurps full and effective parental custody over child-rearing and is less justified than in contexts in which the state is exercising custodial powers over a child in loco parentis. When a parent delegates authority to state institutions, like schools, the Court permits greater government regulation of minors’ rights than when a parent retains full custody. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09 & n.3 (1969). More government intrusion on rights is also allowed when a parent abdicates custody to the state by abandoning a child. See Reno v. Flores, 507 U.S. 292, 302 (1993).

In contrast to situations where parents have delegated or abdicated their authority to the state, parental authority is at its zenith in this case because Ms. McNeil and Mr. Perez retained full custody when they granted consent to their sons to remain in public during curfew hours. (R.10) The state’s interest in regulating the rights of children is at its ebb when it conflicts with the full and effective expression of parental authority.

2. Ames Fails to Justify Treating Adults and Children Differently; Therefore Strict Scrutiny Is Required.

Bellotti articulates the framework for determining whether the rights of minors are coextensive with the rights of adults across regulatory contexts. The three factors that might permit the state to restrain minors in a way that would be unconstitutional if applied to adults are: “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” Bellotti, 443 U.S. at 634. If a statute can be justified by these factors, the Court is “required to determine the strength of the support provided, its relation to the [enactment] as a whole, and the extent, if any, to which it might serve to justify any special restraints on the ... rights of minors.” Johnson v. City of Opelousas, 658 F.2d 1065, 1073 (5th Cir. 1981) (internal quotation marks omitted). None of Bellotti’s factors are implicated by the Curfew Act; thus minors’ right of free movement is coextensive with that of adults.

Ames’s juvenile curfew does not implicate “the peculiar vulnerability of children.” Bellotti, 443 U.S. at 634. In the context of juvenile curfews, Bellotti requires more than paternal assumptions and intuition about traits stereotypically inhering in minors, such as that children are inherently more susceptible to the temptations of crime or that children are more likely to be victimized by criminals. See Ames Gen. L. ch. 87, § 2(A)(1). This approach is overinclusive and purports to justify a conclusion without any objective inquiry. Bellotti requires a realistic appraisal of the particular facts in each jurisdiction to determine whether minors are in fact disproportionately at risk to commit crimes or become the victims of crime.

Ames has offered no evidence to indicate that minors are peculiarly vulnerable to crime in public places during curfew hours. (R.11) (showing that in 2000, sixty-four percent of violent crimes against children took place in non-public places and that fifty-nine percent of violent crimes against children occurred outside curfew hours) Furthermore, Ames has failed to show why the presence of minors in public during curfew hours makes them more vulnerable to crime than other groups. Violence is ubiquitous and nonselective. It affects all members of society. Purportedly protecting children from some possible generalized harm does not justify the extra burden on minors’ constitutional rights, especially when such a burden prohibits them from engaging in otherwise legitimate and valuable activities. See Waters v. Barry, 711 F. Supp. 1109, 1137 (D.D.C. 1989).

The Ames curfew fails to implicate children’s “inability to make critical decisions in an informed, mature manner.” Bellotti, 443 U.S. at 634. This requirement demands more than a showing that minors may have to make some undefined decision between right and wrong. In fact, the choices implicated by the curfew involve neither a generalized question of right or wrong nor “any critical decisions on the part of minors.” See City of Opelousas, 658 F.2d at 1073 (internal quotation marks omitted); cf. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 67 (1976) (examining the critical decision to have an abortion). The decision at issue is not whether to engage in crime but whether to remain in public at night. In contrast to “precisely delineated” activities that require children to make critical choices, the curfew indiscriminately prohibits even innocuous and beneficial activities in public places during curfew hours. Ginsburg v. New York, 390 U.S. 629, 649 (1968). The decision to go to an amusement park with parental consent is bereft of the life-altering consequences surrounding the choice to abort a pregnancy. See Casey, 505 U.S. at 852. Ames has failed to provide any evidence that indicates why a minor, who is capable of making the decision to abort a pregnancy without parental consent, cannot make an informed, mature decision about remaining in public at night even when he has parental consent. When parents, who have the “experience, perspective, and judgment to … avoid choices that could be detrimental,” grant consent to their children to be out at night, the concerns underlying this factor are negligible. Bellotti, 443 U.S. at 635.

Ames’s juvenile curfew undermines the importance of the parental role in child-rearing. The “importance of the parental role in child-rearing” may be promoted by legal restrictions “especially ... supportive of the parental role” in preparing children for responsible adulthood and worthwhile participation in society. Id. at 634, 638-39. Restrictions that undermine the parental role may have the opposite effect. As the Court noted, “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). When the issues merely involve authority over the generalized activities of children, the parental role is protected against the exercise of state power. See Ginsberg, 390 U.S. at 639 (announcing that parents have the primary role in regulating the activities of their children).

A blanket curfew “gracelessly arrogates unto itself and to the police the precious rights of parenthood.” Waters, 711 F. Supp. at 1137. Not only does the curfew usurp parental custody, the curfew criminalizes the very act of giving parental consent to juveniles to remain in public places during curfew hours. See Ames Gen. L. ch. 87, § 4(B). In the face of full parental custody, Ames provides no evidence that justifies treating minors’ fundamental rights differently from the rights of adults in the context of a juvenile curfew. As a result, the Court should analyze the Curfew Act under strict scrutiny.

3. If Minors’ Rights Are Not Found To Be Coextensive with Those of Adults, Intermediate Scrutiny is Appropriate.

Even if the Court decides that one of the Bellotti factors justifies greater government regulation of minors’ right of free movement in the curfew context, the Court should still apply heightened scrutiny to safeguard McNeil and Perez’s well-settled liberty interests against arbitrary government action. See Clark v. Jeter, 486 U.S. 456, 461 (1988) (recognizing intermediate scrutiny “[b]etween these extremes of rational basis review and strict scrutiny”); see also Glucksberg, 521 U.S. at 767 (Souter, J., concurring) (calling for courts to “assess the relative ‘weights’ or dignities of the contending interests”). A recognition that the government might have more justification to regulate a minor’s right does not eviscerate the right itself – minors still share the personal liberty interest in moving freely. See Ramos v. Town of Vernon, 353 F.3d 171, 178 (2d Cir. 2003). A searching analysis of the government’s interest in infringing the right of free movement is required to safeguard a right of free movement “basic in our scheme of values.” Kent v. Dulles, 357 U.S. 116, 126 (1958).

The Court established an appropriate framework for intermediate scrutiny in Plyler v. Doe, 457 U.S. 202 (1982). In that case, the Court held that whenever a classification implicates “well-settled constitutional principles,” a state must show “reasoned judgment” that the classification “may fairly be viewed as furthering a substantial interest.” Id. at 217-18 & n.16 (applying heightened scrutiny to a law denying education to illegal immigrant children even though education was not a fundamental right). At a minimum, the right of free movement is a “well-settled constitutional principle” deserving intermediate scrutiny. First, the freedom of movement is at least as deeply rooted in history and tradition, see Morales, 527 U.S. at 54, as the right of public education in Plyler. Second, freedom of movement has at least equivalent instrumental importance, see City of Cincinnati, 310 F.3d at 498, as the right of education because it is crucial to the exercise of other fundamental rights.

Based on this reasoning, circuit courts that use Bellotti to allow increased government intrusion on minors’ right of free movement still apply heightened scrutiny in examining juvenile curfews. For example, in Ramos, the Second Circuit noted the special status of minors under Bellotti, but reasoned that once a minor’s interest in free movement has been acknowledged, “the equal protection framework allows for a more discerning inquiry to accommodate competing interests.” Ramos, 353 F.3d at 178. The court stated that it preferred “to admit minors to the protected zone and then engage in a balancing of constitutional rights and children’s vulnerabilities.” Id. Balancing the constitutional right at interest here against the state’s purported interest shows that Curfew Act fails under both levels of heightened scrutiny.

C. The Curfew Act Is Unconstitutional Under Heightened Scrutiny.

1. The Curfew Act Does Not Survive Strict Scrutiny Because the State Has Not Shown the Statute Is Narrowly Tailored to the Government’s Interest.

Ames does not meet its burden under strict scrutiny. Under strict scrutiny, a classification that impinges on the exercise of a fundamental right must be narrowly tailored to serve a compelling governmental interest. Plyler, 457 U.S. at 216-17. The Curfew Act is not narrowly tailored to serve Ames’s stated interests. There is not a sufficient nexus between the Curfew Act and Ames’s interests and the statute does not use the least restrictive means to achieve these interests.

Ames has not demonstrated a nexus between the Curfew Act and its interests for the Curfew Act to survive strict scrutiny. “To be narrowly tailored, there must be a sufficient nexus between the stated government interest and the classification created by the ordinance.” Nunez, 114 F.3d at 946. As the Court explained in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), this test “ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate.” Id. at 493. In Waters, the court invalidated a District of Columbia curfew, based on insufficient evidence of juvenile crime that would suggest a nexus between the curfew and the District’s interests. 711 F. Supp. at 1140. The Ames Legislature based its curfew on a similarly flawed nexus. In the year 2000, almost sixty percent of crimes against children occurred outside Ames’s curfew hours, and a significant portion of crimes against children occurred in places not covered by the curfew, the including more than thirty percent which took place in children’s own homes. (R.11) The evidence of crimes committed by juveniles is even weaker. In a report entitled “Juvenile Offenders and Victims, 2000” by the Ames Attorney General (“Exhibit B”), the data detailing juvenile arrests by municipality does not indicate where and when these arrests took place. (R.15) Thus, “the record indicates that the challenged classification bears little relation to the nature of the problem.” Waters, 711 F. Supp. at 1140.

The statutory framework also does not reflect the least restrictive manner of furthering Ames’s interests. Under “a strict equal protection test,” if “there are other, reasonable ways to achieve [the State’s] goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972). Under strict scrutiny, a statutory measure must be proven necessary before it can pass muster. See Bullock v. Carter, 405 U.S. 134, 147 (1972). Because Ames did not show that the curfew was necessary to further its compelling interests, the state did not meet its burden under strict scrutiny.

Showing necessity is critical, particularly when the Court considers our nation’s problematic history with curfews. During World War II, the Court upheld a curfew against Japanese-Americans because of the critical military need to protect against espionage and sabotage. See Hirabayashi v. United States, 320 U.S. 81, 100 (1943). When Ames enacted its curfew in 2001, there was no indication of any recent fundamental change in the statewide juvenile arrest rate. (R.16) Because Ames was not faced with any real crisis when it enacted the Curfew Act, the statute cannot survive strict scrutiny.

The Record provides no evidence that the State considered alternatives to the juvenile curfew or that traditional policing methods were deemed inadequate. Strict scrutiny requires that, given the opportunity, the State “must choose less drastic means.” Dunn, 405 U.S. at 343 (internal quotation marks omitted). In many communities in Ames, including Amesville, the level of juvenile crime is simply too low to warrant a curfew. Of the nineteen arrests in Amesville in 2000, only two were for violent crime, a category that curiously includes forgery, a decidedly non-violent crime. (R.15) Existing policing methods would likely be sufficient to combat juvenile crime in towns like Amesville. There is no explanation of why the Amesville police force cannot adequately handle juvenile crime without a nighttime curfew when the city averages less than 0.5 juvenile arrests per week. (R.15)

Moreover, the Curfew Act is not narrowly tailored because it does not provide municipalities with sufficient flexibility. While the statute allows local authorities to make the curfew start earlier by up to two hours, it does not allow them to push the curfew to a later start time. See Ames Gen. L. ch. 87, § 7. This precludes towns from making reasonable determinations under the statute that the curfew should be less restrictive in light of local circumstances. See id. A town that would wish to have a less intrusive curfew is out of luck. The curfew is not narrowly tailored because it is over-inclusive, impacting even towns that do not have a demonstrated juvenile crime problem.

Even when viewed in the statewide context, the Curfew Act’s structure is not the least restrictive means. The statute does not contain affirmative defenses that “sufficiently exempt legitimate activities from the curfew.” Nunez, 114 F.3d at 948. The Curfew Act restricts an important affirmative defense. In Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), the statute exempted interstate travel in a motor vehicle without qualification. Id. at 498. In contrast, the Ames statute does not exempt interstate travel originating in or terminating in Ames. (R.14) In addition, the Curfew Act does not contain another defense that is appropriate for a “least restrictive means” statute: parental permission. Any statute that does not provide for parental choice – particularly given Ames’s legislative objective of helping parents in “controlling their children” – cannot survive strict scrutiny. (R.12)

Under strict scrutiny, the Curfew Act is too blunt an instrument. “[I]t is what these curfews restrict, and not what they exempt, that matters most.” Waters, 711 F. Supp. at 1136. The Waters court lamented that curfews stifle “the fundamental liberty interests of thousands of perfectly innocent, law-abiding juveniles” and make them “prisoners at night in their homes.” Id. at 1135-36. The court also noted that “[v]irtually everything that the Act seeks to thwart … is already illegal, and carries sanctions far more painful” than the curfew’s penalties. Id. at 1139. Thus, “the only juveniles for whom the Act will likely have meaning will be those already inclined to obey the law.” Id. As a result, the Curfew Act primarily bans activities much more innocent than gang warfare or drug use, such as stargazing, id. at 1135, or even playing arcade games.

Even if Ames’s interests are compelling, strict scrutiny requires an exacting examination of the means chosen to achieve these goals. Because the Record does not provide any basis for concluding that the Curfew Act is necessary to promote the state’s compelling interests, the state cannot show that the curfew is narrowly tailored. Therefore, it cannot survive strict scrutiny.

2. Ames Has Not Met Its Burden under Intermediate Scrutiny.

The Curfew Act also fails under intermediate scrutiny. The state must show that the classification “serve[s] important governmental objectives and that the discriminatory means employed [are] substantially related to the achievement of those objectives.” Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980). The substantial relationship requirement assures “that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725-26 (1982). The Ames Legislature has not shown that the curfew is the result of a reasoned political decision. The curfew is best characterized as a symbolic measure that sacrifices the rights of those who cannot vote, without advancing society’s interests.

The state legislature has failed to show a substantial relationship between the asserted juvenile crime problem and the curfew remedy. Ames must demonstrate that there is a need for the curfew during the hours it is in effect, and that it relates to the specific age group covered by the statute. See Ramos, 353 F.3d at 186 (finding no evidence “that any consideration was given to the nocturnal aspect of the curfew ordinance” or that “the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized”). The state has not provided any data regarding juvenile crime or victimization that occurs both at night and in a public place. The data provided in the Record permits only very generalized conclusions: in 2000, forty-one percent of violent crimes against juveniles occurred between 11 p.m. and 5 a.m. and thirty-six percent occurred in public places. (R.11)

Ames provides no indication that any determination was made as to the appropriate age for the curfew. Anecdotes about “[g]angs of adolescents who slouch around street corners” do not make clear if the perpetrators of crime are under eighteen or over eighteen. (R.28) The Ramos court did not find an assessment by a city council member of gang members’ ages to be persuasive. 353 F.3d at 184-87. The Ames curfew is also based, in part, on an overly general assessment linking gang violence to certain age groups. The State did not establish a necessary premise to show that the curfew would further an important interest.

Ames has shown neither that the Curfew Act responds to a statewide problem nor that it is justified as a statewide solution. Legislation should be congruent with the evidence used to support it. In Nunez, a strict scrutiny case, the court remarked that a local curfew could not be justified by national statistics. 114 F.3d at 947. The Ames curfew is similarly incongruous because it is a statewide curfew based on selective local statistics. In short, juvenile crime statistics from Ames City were used to impose a curfew on every other municipality. (See R.11) Apart from some Ames City data, the Record only includes one chart, Exhibit B, which details the number of juvenile arrests per municipality in Ames. (R.15) This data is insufficient to establish the need for a nighttime curfew throughout the state because of the low level of arrests in many towns. (R.15) As a result, while Ames seeks to justify a nighttime curfew on the need to reduce juvenile crime throughout the state, it has enacted a curfew in the absence of evidence that these problems exist throughout the state. The curfew is a solution in search of a problem.

Instead of making a reasoned analysis, the State has simply assumed that all juveniles are incapable of exercising their rights appropriately. But the juveniles of Ames are not a monolithic group. They live in different parts of the state, have different interests, and interact with different surroundings. The Ames Legislature, however, has created one solution, has applied it to parts of the state in which there is no problem, and has burdened an essential right of all juvenile citizens. Applying intermediate scrutiny in Craig v. Boren, 429 U.S. 190 (1976), the Court counseled against relying on “social stereotypes” to justify policy. Id. at 203 n.14. This same concern is present here. Children, who lack a voice as voters, have had their rights reduced based on evidence amounting to stereotypes presented by groups like the AARP. (See R.28) In sum, the statute is based on faulty assumptions and poor evidence instead of reasoned analysis. Ames cannot show that the “requisite direct, substantial relationship between objective and means is present” and thus the Curfew Act cannot stand. Hogan, 458 U.S. at 725.