Posted by Eugene Volokh:
New York's Highest Court Strikes Down Rochester Juvenile Curfew Ordinance:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244592065
There have been a bunch of cases on this over the past couple of
decades, and I don't have a big picture opinion about them. But it
does seem to me that [1]this particular opinion is quite unpersuasive.
The curfew barred under-17-year-olds who aren't accompanied by parents
from being out in public from 11 pm to 5 am (or between midnight and 5
am Fridays and Saturdays); it had some exceptions, for employment,
emergencies, various events, and exercise of "fundamental rights such
as freedom of speech or religion or the right of assembly ... as
opposed to general social association." Rochester's chief argument was
that the curfew would reduce crime by and against under-17-year-olds.
But the court didn't buy it:
Although the statistics show that minors are suspects and victims
in roughly 10% of violent crimes committed between curfew hours
(11:00 p.m. to 5:00 a.m.), what they really highlight is that
minors are far more likely to commit or be victims of crime outside
curfew hours [footnote: Looking at the hourly breakdown of minors
as crime suspects and victims, more than three-quarters (75% to
86%) of all crimes that minors commit and are victims of take place
during non-curfew hours.] and that it is the adults, rather than
the minors, who commit and are victims of the vast majority of
violent crime (83.6% and 87.8% respectively) during curfew hours.
The crime statistics are also organized by days of the week and
despite that minors are 64% to 160% more likely to be a victim and
up to 375% more likely to be a suspect of violent crimes on
Saturdays and Sundays as compared to a given weekday, surprisingly,
the curfew is less prohibitive on weekends. We also note that the
methodology and scope of the statistics are plainly over-inclusive
for purposes of studying the effectiveness of the curfew.
To be sure, minors are affected by crime during curfew hours but
from the obvious disconnect between the crime statistics and the
nighttime curfew, it seems that �no effort ... [was] made by the
[City] to ensure that the population targeted by the ordinance
represented that part of the population causing trouble or that was
being victimized.� If, as the dissent argues, it is enough that
from 2000 to 2005 a number of juveniles were victimized at night,
then the same statistics would justify, perhaps even more strongly,
imposing a juvenile curfew during all hours outside of school since
far more victimization occur during those hours.
The last sentence I quoted, I think, helps show the weakness of the
court's analysis. Of course a juvenile curfew during all hours outside
of school would likely protect minors from crime more than a
late-night curfew would. But the city isn't singleminded focused
solely on protecting juveniles from crime. It also wants them to have
fun -- to enjoy, to a considerable extent, the liberty that adults
have.
The real reason for nighttime curfews isn't that 11 pm to 5 am are the
times of maximum vulnerability for under-17-year-olds, and certainly
not that under-17-year-olds are the main source, or even a
disproportionate source, of crime during those hours. Rather, it's
that Rochester government (and quite possibly Rochester voters) think
that keeping minors off the street from 11 pm to 5 am is a fairly
modest restriction on their liberty and happiness, in a way that
keeping them off the street from 3 pm to 8 am would not be. This also
explains why letting minors stay out until midnight on Fridays and
Saturdays shouldn't be at all "surprising[]"; it's an accommodation of
the desire to let under-17-year-olds enjoy themselves longer on
non-school nights than on school nights.
Now maybe the government has no business protecting 16-year-olds this
way, especially when their parents disagree with the government's
protective plans. As I mentioned, I have no firm opinions on the scope
of minors' rights to liberty of movement, or on parents' rights to
allow their minor children freedom of movement without interference
from the government.
But the court doesn't take this view, it seems to me. It says that
children's rights to freedom of movement are substantially lesser than
adults' rights, and are potentially restrictable if the law passes
"intermediate scrutiny," which is to say is "'substantially related'
to the achievement of 'important' government interests." It seems to
suggest that if the law were sufficiently linked to the prevention of
crime by or against under-17-year-olds, it would be constitutional.
And it rests its rejection of the law on the grounds that "Quite
simply, the proof offered by the City fails to support the aims of the
curfew in this case," for the reasons I mentioned above.
This, it seems to me, is a common problem in cases that use
intermediate scrutiny, or "means-ends scrutiny" more broadly (such as
strict scrutiny): A court focuses on one interest, and argues that the
law is a poor fit with that interest. But most laws aim at serving a
bunch of different interests at once. Here, the government is trying
to reduce crime by and against under-17-year-olds (hence the presence
of some curfew). It's trying to reduce this crime with minimum impact
on full-fledged adults, who the court seems to acknowledge have
broader rights than minors do (hence the limitation of the curfew to
minors, even though adults commit most of the crimes). And it's trying
to reduce this crime with only a modest impact on 16-year-olds'
ability to have fun.
If the law is to be struck down, it shouldn't be because the city
lacks sufficient "crime statistics," or because adults commit many
more crimes than minors, or because children are more often victimized
on Saturdays and Sundays. Intermediate scrutiny, at least as the court
has applied it, seems to have been more of a distraction than a
helpful guide.
The dissent also seems right in pointing out (assuming the record
evidence supports it -- I haven't looked at it) that "Of course minors
are more likely to commit or be victims of crime outside curfew hours.
For one thing, the curfew hours comprise only 40 out of the 168 hours
in a week. As to the likelihood of becoming crime victims, most
children are at home during the curfew hours, as the defendant Mayor
noted. But it certainly does not follow that a child who goes out at
night is less likely to become the victim of a crime than one who goes
out during the day. Again, it is completely unsurprising that adults
commit and are victims of most crimes during curfew hours. Adults
commit more crimes than children at all hours. Indeed, this may simply
be an instance of the general truth that adults, who make up some
three-quarters of the population, are more likely to do anything." But
that too shouldn't, I think, be the heart of the argument, for the
reasons I gave above.
(The court also reasons that the law unduly interferes with parental
rights, chiefly because it doesn't have an exception for children who
have their parents' approval to be out. But under the court's view of
parental rights, it seems that if the protecting-children rationale
were accepted as a justification for restricting the children's
rights, it would likely be accepted as a justification for restricting
the parents' rights, which aren't that strongly protected in any
event. That's why I keep the already longish post above focused on the
children's rights question.)
References
1. http://www.courts.state.ny.us/CTAPPS/decisions/2009/jun09/81opn09.pdf
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