11 F.3d 488 (5th Cir. 1993), 92-1707, Qutb v. Strauss

Docket Nº:92-1707.
Citation:11 F.3d 488
Party Name:Elizabeth QUTB, Individually and as next friend of Sabrina Qutb, et al., Plaintiffs-Appellees, v. Annette STRAUSS, Mayor of the City of Dallas, TX, et al., Defendants, v. Steve BARTLETT, Mayor of the City of Dallas, TX, et al., Defendants-Appellants. [*]
Case Date:November 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 488

11 F.3d 488 (5th Cir. 1993)

Elizabeth QUTB, Individually and as next friend of Sabrina

Qutb, et al., Plaintiffs-Appellees,


Annette STRAUSS, Mayor of the City of Dallas, TX, et al., Defendants,


Steve BARTLETT, Mayor of the City of Dallas, TX, et al.,

Defendants-Appellants. [*]

No. 92-1707.

United States Court of Appeals, Fifth Circuit

November 19, 1993

Page 489

Sam A. Lindsay, City Atty., Dallas, TX, for appellants.

Richard E. Henderson, Karen Anderson, Asst. City Attys., Ft. Worth, TX, for amicus curiae City of Ft. Worth.

Elaine Sue Hengen, Asst. City Atty., El Paso, TX, for amicus curiae City of El Paso.

Tona Trollinger, Dallas Civ. Liberties Union Foundation, Emmett Colvin, Richard F.

Page 490

Aquire, Colvin & Aquire, Bruce Edward Anton, Bruce Ashford Morrow, Dallas, TX, for appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before KING and JOLLY, Circuit Judges, and PARKER, District Judge. [**]

E. GRADY JOLLY, Circuit Judge:

This appeal presents a challenge to the constitutionality of a nocturnal juvenile curfew ordinance enacted by Dallas, Texas. The ordinance makes it a misdemeanor for persons under the age of seventeen to use the city streets or to be present at other public places within the city between certain hours. 1 Several plaintiffs brought suit against the city to strike down the ordinance. The district court ruled for the plaintiffs, holding that the ordinance violated both the United States and the Texas Constitutions, and permanently enjoined enforcement of the ordinance. The city appeals. Because we conclude that this ordinance does not violate the United States or Texas Constitutions, we reverse the district court.


On June 12, 1991, in response to citizens' demands for protection of the city's youth, the Dallas City Council enacted a juvenile curfew ordinance. This ordinance prohibits persons under seventeen years of age 2 from remaining in a public place or establishment from 11 p.m. until 6 a.m. on week nights, and from 12 midnight until 6 a.m. on weekends. As defined by the ordinance, a "public place" is any place to which the public or a substantial group of the public has access, and includes streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. "Establishment" is defined as "any privately-owned place of business operated for a profit to which the public is invited, including but not limited to any place of amusement or entertainment."

Although the ordinance restricts the hours when minors are allowed in public areas, the ordinance also contains a number of exceptions, or defenses. A person under the age of seventeen in a public place during curfew hours does not violate the ordinance if he or she is accompanied by a parent 3 or guardian, or is on an errand for a parent or guardian. Likewise, minors would be allowed in public places if they are in a motor vehicle travelling to or from a place of employment, or if they are involved in employment related activities. Affected minors could attend school, religious, or civic organizational functions--or generally exercise their First Amendment speech and associational rights--without violating the ordinance. Nor is it a violation to engage in interstate travel, or remain on a sidewalk in front of the minor's home, or the home of a neighbor. And finally, the ordinance places no restrictions on a minor's ability to move about during curfew hours in the case of an emergency.

A minor violates the curfew if he or she remains in any public place or on the premises of any establishment during curfew hours, and if the minors' activities are not exempted from coverage. If a minor is apparently violating the ordinance, the ordinance requires police officers to ask the age of the apparent offender, and to inquire into the reasons for being in a public place during

Page 491

curfew hours before taking any enforcement action. An officer may issue a citation or arrest the apparent offender only if the officer reasonably believes that the person has violated the ordinance and that no defenses apply. If convicted, an offending party is subject to a fine not to exceed $500.00 for each separate offense.

Like minors who have violated the offense, a parent of a minor, or an owner, operator, or employee of a business establishment is also subject to a fine not to exceed $500 for each separate offense. A parent or guardian of a minor violates the ordinance if he or she knowingly permits, or by insufficient control allows, a minor child to remain in any public place or on the premises of any establishment during curfew hours. An owner, operator, or employee of a business establishment commits an offense by knowingly allowing a minor to remain upon the premises of the establishment during curfew hours.


On July 3, 1991, two weeks after the ordinance was enacted, Elizabeth Qutb and three other parents filed suit--both individually and as next friends of their teenage children--seeking a temporary restraining order and a permanent injunction against the enforcement of the juvenile curfew ordinance on the basis that the ordinance is unconstitutional. 4 The district court certified the plaintiffs as a class that consisted of two sub-classes: persons under the age of seventeen, and parents of persons under the age of seventeen. One week later, the court advanced the trial on the merits, and consolidated the trial with the hearing on the plaintiffs' request for temporary and permanent injunctions. The case was tried on July 22-23, and the district court denied the plaintiffs' request for a temporary injunction. The city, however, voluntarily delayed enforcement of the curfew pending the district court's decision on the merits.

On June 12, 1992, before the district court issued its final order on the merits of the case, the city voluntarily amended the curfew ordinance. The amended ordinance deleted or altered some of the provisions of which the plaintiffs complained, while expanding some of the defenses available to affected minors. In response to the revised ordinance, the plaintiffs filed an amended complaint and an amended motion for a permanent injunction against enforcement of the curfew. The district court held a second evidentiary hearing, where both parties presented additional evidence and arguments concerning validity of the revised ordinance under the United States and Texas constitutions. On August 10, 1992, the district court held that the curfew impermissibly restricted minors' First Amendment right to associate, and that it created classifications that could not withstand constitutional scrutiny. 5 Accordingly, the district court permanently enjoined enforcement of the curfew, and the city now appeals.



We review de novo the district court's conclusions of constitutional law. Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1213 (5th Cir.1991); Shillingford v. Holmes, 634 F.2d 263, 266 (5th Cir.1981). The minor plaintiffs argue,

Page 492

inter alia, that the curfew ordinance violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Only if the challenged government action classifies or distinguishes between two or more relevant groups must we conduct an equal protection inquiry. Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir.1988). Here, it is clear that the curfew ordinance distinguishes between classes of individuals on the basis on age, treating those persons under the age of seventeen differently from those persons age seventeen and older. Because the curfew ordinance distinguishes between two groups, we must analyze the curfew ordinance under the Equal Protection Clause.

Under the Equal Protection analysis, we apply different standards of review depending upon the right or classification involved. If a classification disadvantages a "suspect class" or impinges upon a "fundamental right," the ordinance is subject to strict scrutiny. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982). Under the strict scrutiny standard, we accord the classification no presumption of constitutionality. Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1059 (5th Cir.1984). Instead, we ask whether the classification promotes a compelling governmental interest and, if so, whether the ordinance is narrowly tailored such that there are no less restrictive means available to effectuate the desired end. Pugh v. Rainwater, 557 F.2d 1189, 1195 (5th Cir.1977), vacated on other grounds, 572 F.2d 1053 (5th Cir.1978).

In this case, no one has argued, and correctly so, that a classification based on age is a suspect classification. See Gregory v. Ashcroft, --- U.S. ----, ----, 111 S.Ct. 2395, 2406, 115 L.Ed.2d 410 (1991) (holding that age is not a suspect class). The minor plaintiffs, however, have argued that the curfew ordinance impinges upon their "fundamental right" to move about freely in public. For purposes of our analysis, we assume without deciding that the right to move about freely is a fundamental right. We are mindful, however, that this ordinance is directed solely at the activities of juveniles and, under certain circumstances, minors may be treated differently from adults. 6


Because we assume that the curfew impinges upon a fundamental right, we will now subject the ordinance to strict...

To continue reading