Supreme court of the united states of america

ORDER

Appellants appeal from the order of the United States District Court for the District of Ames entering summary judgment against them. Appellants present two issues on appeal. First, Appellants contend that the District Court erred in holding that the Ames Juvenile Curfew Act, Ames Gen. L. ch. 87, §1 et seq., does not violate the Fourteenth Amendment Equal Protection rights of the Plaintiffs. Second, Appellants contend that the District Court erred in holding that Defendant Amesville Playland is not a state actor acting under color of state law and therefore cannot be held liable under 42 U.S.C. §1983.

For the reasons set forth in the opinion of the District Court, we AFFIRM.
Dated: October 17, 2004

  William Grimes,

  Circuit Judge

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

)

SPENCER McNEIL, a minor, through his )

parent and next of friend, VANESSA )

McNEIL, and JUAN PEREZ, a minor, )

through his parent and next of friend, )

JOSE PEREZ, )

)

Petitioners, )

)

v. ) Docket No. 04-1362

)

SAM LU, in his official )

capacity as Chief of Police of Amesville, )

Ames, SARAH JACKSON, in her )

official capacity as Amesly County )

Prosecutor, and AMESVILLE )

PLAYLAND, )

)

Respondents. )

)

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE THAT the Petition for Writ of Certiorari to the Ames Circuit in the above-captioned matter is hereby GRANTED. Review is limited to the following two questions: (1) Whether the Ames Juvenile Curfew Act, as codified at Ames Gen. L. ch. 87, §1 et seq., violates Petitioners’ rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; (2) Whether Defendant Amesville Playland is a state actor acting under color of state law for purposes of 42 U.S.C. §1983.

The parties are directed to timely submit their briefs in accordance with the schedule they received.

IT IS SO ORDERED.
DATED: December 8, 2004


Ames Senate Judiciary Committee

Evidence From Hearings
1. Roseann Hastings. Hearings on S.B. 406 Before the Senate Judiciary Committee, 63^rd General Assembly, 1^st Reg. Sess. Audio Tape 01-8, September 23, 2001, at 8:33 a.m.) (“Hearings”)
Good morning. My name is Roseann Hastings, and I am the Executive Director of the Ames Division of the American Association for Retired People (“Ames AARP”). Over the last several years, the Ames AARP has become increasingly concerned about the rise in juvenile crime throughout Ames. Gangs of adolescents who slouch around street corners and strut down neighborhood streets have become a dangerous problem not only in cities, but in small towns and rural areas, too. In fact, in a survey conducted by the Ames AARP last year, 183 out of the 276 local law enforcement heads in the State of Ames reported gang-related crime in their municipalities. The retired and elderly are often the victims of these crimes by teenagers. We support a juvenile curfew as a means of protecting those citizens who are least able to protect themselves.
2. Crista McDonell, Hearings at 9:15 a.m.
Hello. My name is Crista McDonell. I am the Director of the Ames Center for Children and Adolescents (“ACCA”). The ACCA’s mission is to advocate for minors’ rights on a variety of issues. The ACCA is troubled by and opposes the proposed juvenile curfew legislation because it is neither a law against property crime nor a law against personal crime – it’s just a law against being. It’s a law against being outside because of your age, whether you’ve done something wrong or not. Moreover, the ACCA does not believe that the proposed curfew will significantly protect minors from being the victims of crime. Statistics published by the Ames Attorney General from last year indicate that 59 percent of violent crimes against children in Ames under the age of 18 occurred either before 11 o’clock at night or after 5 o’clock in the morning. This means that less than half of these crimes took place during hours that would be covered by the curfew. Moreover, only 36 percent of violent crimes against children took place in what are generally considered to be public places. In fact, 31 percent of violent crimes against children--almost one-third--took place in the children’s own homes. For these reasons, the ACCA believes that the proposed curfew is misdirected; the public funds and energies that will be needed to enforce the curfew would be better directed toward better gun control, after-school programs, and drug counseling.
3. James Segal, Hearings at 1:05 p.m.
Good afternoon. I’m Jim Segal, and I’m a professor of criminology and criminal law at the University of Ames. I have recently completed a two-year study designed to measure the effect, if any, of juvenile curfew restrictions on juvenile crime. I examined 15 other juvenile curfews and concluded that, in the majority of cases, they have no significant effect on the crime rate. Mostly, these laws are passed for political and symbolic effect because they offer quick-fix solutions. Moreover, in the rare cases where passage of a juvenile curfew law was followed by a decrease in crime, this drop can generally be attributed to the simultaneous adoption of other types of harsher law enforcement measures.

4. Rodney Cuoco, Hearings at 2:25 p.m.

Good afternoon. I am the Chief of Police for Ames City, the largest city in the State of Ames. As many of you know, Ames City has been experiencing an increase in crime committed by minors over the last several years, with much of this increase related to gang activity. Over the last five years, violent crimes committed by minors--including murder, robbery, and assault--have increased roughly 18 percent. Property crimes committed by juveniles have risen 22 percent over the same period. Moreover, I can tell you that, during the year 2000, 32 percent of all violent crimes committed in Ames City occurred between the hours of 11 p.m. and 5 a.m. Unfortunately, I don’t have data that indicates how many of those crimes were committed by children, but, as you can see, the nighttime hours are clearly a dangerous time in Ames City.

Ames Legislative Record – Senate

Proceedings and Debates of the 2001 Legislative Session

Monday, October 1, 2001
The Senate meets to consider the bill (S.B. 406), the Prevention and Reformation of Juvenile Delinquency Act, and in particular, the portion of the bill commonly known as the Ames Juvenile Curfew Act that establishes a juvenile curfew. Mr. Reynolds is in the chair.
The Clerk read the title of the bill.
The CHAIRMAN.
The Chair recognizes the bill’s sponsor, Mr. Benitez.
Mr. Benitez:
Thank you, Mr. Chairman.
We are all sadly aware of the increase in violence and crime involving juveniles that plagues many, if not all, of our cities and towns. The governments of those cities and towns have made many efforts to curtail gang activities, cut down on the drug trade, but often these efforts have failed. I am before you to urge you to vote for the Ames Juvenile Curfew Act of 2001.
To those who argue against a curfew for minors, please remember that children are particularly vulnerable members of our society. Parents must keep their children on a safe path, but they may fail, and at times society has to step in to ensure that its most vulnerable members are not harmed when a solution exists to the problems they face. To this end, we have created a fair, workable system for limiting the opportunities that children have to become entangled in crime, either as perpetrator or as victim.
Mr. Chairman, I represent the Towns of Ames Center and Ames Corner. Until recently, our towns were quiet and really had almost no trouble with juvenile violence. We have always been concerned about minors driving when they had too much to drink on our quiet country roads, but we did not concern ourselves with the bigger issues of violence and gang-related activities. Now, however, the past decade has brought an increase in the amount of violence and crime perpetrated by minors, much of it related to gang activity. My constituents want assistance with this problem. Whether they are parents whose children have moved outside of their control, parents who worry that their own child will be the next victim or simply people who want to feel safe when they go out at night, the citizens of these towns want to limit the violence and crime.
By keeping minors in their homes, with their families, during the late hours of the night and the early hours of the morning, this bill recognizes that the majority of juvenile crimes cannot happen if no one is on the street to perpetrate them. Children should be home at night and not roaming around the streets of any community in our state. Often children are not capable of making wise choices due to peer pressure and other societal factors. It is our duty, our obligation to protect children by taking the opportunity to get caught up in bad situations away from them. We can do this by limiting their exposure to gang-related activities and to any other criminal behavior happening at a time when children should be safe at home.

The CHAIRMAN:

The Chair recognizes Ms. Hubbard:
Ms. Hubbard:
Thank you, Mr. Chairman.
I have much to say about the Act currently under discussion, but for the moment, I will focus my comments on the Ames Juvenile Curfew Act.
I think that a juvenile curfew for the State of Ames is a bad idea. First, this curfew limits the freedom of movement that should be enjoyed by all citizens of the State of Ames. Second, a curfew seeks to take the place of responsible parenting, Third, a curfew of this type does very little to combat juvenile crime and violence.
Mr. Chairman, this portion of the Act asks for too much sacrifice by the young people and their parents in the State of Ames without the promise of any measurable, and lasting results. This crude limitation on the freedom of movement of minors prevents them from enjoying the ability to travel around their home towns as they choose. Under this portion of the Act, a minor, on her way to her best friend’s house on bike, could be found in violation of the statute.
Moreover, parents have been completely eliminated from the picture of child-raising (unless, of course, a parent is found to have violated the juvenile curfew law herself) by imposing this curfew on minors even if their parent says they are free to move about as they wish. We should not be in the business of decreasing the responsibility parents take for their children. Let’s give parents the tools to be more supportive of their children, not take away that obligation. Otherwise, even if this minor had her parents’ full permission to go to her friend’s house, she would still be in violation, and her parents’ consideration of the situation would be irrelevant.
The most troubling aspect of this bill to me is its promise to help end the problem of juvenile crime and violence. Oh, that the problem were so simple as to disappear in the wake of a juvenile curfew. Most crime committed by minors is committed during the day, not during the curfew hours. Sadly, some minors are safer outside of their homes than in their homes. Lastly, by taking away the opportunity to commit crimes, as my esteemed colleague, Mr. Benitez, suggested, we would only be delaying the problem. Those individuals likely to commit crimes as juveniles may still commit crimes as adults if we don’t do solve the problems of poverty, inadequate education and lack of opportunity our young people face today. We should focus our legislative and policy efforts on providing minors with more things to do: more activities to participate in, more causes to care about, and more places to go that are safe and fun. That is the answer to the problem – not a juvenile curfew.

The CHAIRMAN:

There being no further speakers, debate on the bill is closed.

1 Statewide Rank indicates a municipality’s ranking for overall juvenile crime. Ames City, ranked number 1, has the highest absolute level of juvenile crime in the state; Amestown, ranked number 276, has the lowest absolute level of juvenile crime in the state.

2 The Violent Crime Index includes the offenses of murder and non-negligent manslaughter, forgery, robbery, and aggravated assault.

3 The Property Crime Index includes the offenses of burglary, larceny-theft, and motor vehicle theft.

1 The Violent Crime Index includes the offenses of murder and non-negligent manslaughter, forgery, robbery, and aggravated assault.

2 The Property Crime Index includes the offenses of burglary, larceny-theft, and motor vehicle theft.

1 Other courts have held that Bellotti should be used to determine the strength of the state interest rather than whether differential treatment of minors is permissible. See, e.g., Qutb v. Strauss, 11 F.3d 488, 492 n.6 (5^th Cir. 1993); Nunez v. City of San Diego, 114 F.3d 935, 945 (9^th Cir. 1997).

2 Although the “state action” and “color of law” requirements are technically distinct, in practice they have been collapsed, especially in cases in which a private merchant is sued for §1983 liability for the detention, arrest, or search of one of its customers. See, e.g., Smith v. Brookshire Bros., Inc., 519 F. 2d 93, 94 (5^th Cir. 1975).