114 F.3d 935 (9th Cir. 1997), 96-55290, Nunez by Nunez v. City of San Diego

Docket Nº:96-55290.
Citation:114 F.3d 935
Party Name:97 Daily Journal D.A.R. 7221 Gabriel NUNEZ, a minor, by Rene NUNEZ, his guardian ad litem; Jennifer Lin-Liu, a minor by Sen Lin-Lieu, her guardian ad litem; Alleyn Evans, a minor by Michael Evans, her guardian ad litem; David Pressman, a minor, by Joel M. Pressman, his guardian ad litem, Terra Lawson-Remer, a minor, by Shari Lawson, her guardian ad
Case Date:June 09, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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114 F.3d 935 (9th Cir. 1997)

97 Daily Journal D.A.R. 7221

Gabriel NUNEZ, a minor, by Rene NUNEZ, his guardian ad

litem; Jennifer Lin-Liu, a minor by Sen Lin-Lieu, her

guardian ad litem; Alleyn Evans, a minor by Michael Evans,

her guardian ad litem; David Pressman, a minor, by Joel M.

Pressman, his guardian ad litem, Terra Lawson-Remer, a

minor, by Shari Lawson, her guardian ad litem; Natalie Del

Muro; Asha Settimo, a minor, by Amber Sidhu, her guardian

ad litem; Amber Sidhu; Patrick Maher, Plaintiffs-Appellants,


CITY OF SAN DIEGO; Susan Golding, in her official capacity

as Mayor of the City of San Diego; Jerry Sanders, in his

official capacity as Chief of Police for the City of San

Diego, Defendants-Appellees.

No. 96-55290.

United States Court of Appeals, Ninth Circuit.

June 9, 1997

Argued and Submitted March 6, 1997.

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[Copyrighted Material Omitted]

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Jordan C. Budd, ACLU Foundation of San Diego, San Diego, California, Lane L. McVey, Juanita R. Brooks, and John Dillon Clarke, McKenna & Cuneo, San Diego, California, and Michael R. Marrinan, Adler & Marrinan, San Diego, California, for the plaintiffs-appellants.

James M. Chapin, Deputy City Attorney, San Diego, California, for the defendants-appellees.

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-95-00321-MLH.

Before SCHROEDER, WIGGINS, LEAVY, Circuit Judges.

WIGGINS, Circuit Judge.

Plaintiffs challenge the constitutionality of the City of San Diego's juvenile curfew ordinance. The district court granted summary judgment for the City, and plaintiffs appealed. We have jurisdiction under 28 U.S.C. § 1291. We reverse.


The City of San Diego enacted its juvenile curfew ordinance in 1947. The ordinance reads as follows:

It shall be unlawful for any minor under the age of eighteen (18) years, to loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, wharves, docks, or other public grounds, public places and public buildings, places of amusement and entertainment, vacant lots or other unsupervised places, between the hours of ten o'clock P.M. and daylight immediately following....

San Diego, Cal., Municipal Code Art. 8, § 58.01. The ordinance then provides that the curfew does not apply in four situations:

(1) "when the minor is accompanied by his or her parents, guardian, or other adult person having the care and custody of the minor,"

(2) "when the minor is upon an emergency errand directed by his or her parent or guardian or other adult person having the care and custody of the minor,"

(3) "when the minor is returning directly home from a meeting, entertainment or recreational activity directed, supervised or sponsored by the local educational authorities," or

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(4) "when the presence of such minor in said place or places is connected with and required by some legitimate business, trade, profession or occupation in which said minor is lawfully engaged."

Id. A minor violating § 58.01 commits a misdemeanor. Id. § 58.01.2. Section 58.01.1 also creates criminal liability for the "parent, guardian or other adult person having the care and custody of a minor" who permits or allows the minor to violate the curfew ordinance. On April 25, 1994, the City adopted a resolution to enforce the curfew aggressively.


Plaintiffs are minors and parents of minors from San Diego. They brought an action under 42 U.S.C. § 1983 to challenge the ordinance's constitutionality on its face. Plaintiff minors allege, among other things, that the ordinance restricts them from many otherwise lawful activities after curfew hours, i.e., volunteering at a homeless shelter, attending concerts as a music critic, studying with other students, meeting with friends at their homes or in coffee houses, stopping at a restaurant to eat dinner after serving on the School District Board, auditioning for theater parts, attending ice hockey practice, practicing astronomy, and dancing at an under-21 dance club. Plaintiff parents allege that the ordinance impinges upon their ability to rear their children as they wish because they and their children would face misdemeanor liability under the curfew.

The district court granted summary judgment in favor of the City, concluding that the ordinance was constitutional. It held that the ordinance prohibited only aimless nocturnal conduct in public. Thus, the district court concluded that the curfew imposed only a minimal burden on minors and their parents and was narrowly tailored to address the City's compelling interest in reducing juvenile crime and victimization. This appeal followed. Amicus briefs in support of the City were filed by the American Alliance for Rights and Responsibilities ("AARR") and by Bakersfield and 113 other California cities ("California amici").


Before turning to the merits of the appeal, we reach two preliminary issues regarding the appropriateness of our review. The City does not challenge on appeal the district court's finding that plaintiffs had standing. We briefly discuss the issue, however, as we must independently examine whether we have jurisdiction. Indian Oasis-Baboquivari Unified Sch. Dist. v. Kirk, 109 F.3d 634, 636 (9th Cir.1997) (en banc). When a case becomes moot on appeal, the general practice is to vacate or reverse the judgment below and remand with a direction to dismiss. Arizonans for Official English v. Arizona, 520 U.S. 43, ----, 117 S.Ct. 1055, 1071, 137 L.Ed.2d 170 (1997) ("Arizonans "). This is not a class action, so the minors' claims become moot once they reach age eighteen. Similarly, their parents' claims would be moot except to the extent the parents are still subject to liability for other minor children whose actions are made unlawful by the curfew. At present, however, this action is not moot because at least one of the minors, Asha Settimo, is not yet eighteen and her parent, Amber Sidhu, is also a named plaintiff.

We must be cautious in determining the constitutionality of a municipal ordinance where the state supreme court has not provided a controlling interpretation of its meaning. Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1437 (9th Cir.1997) (citing Arizonans, 520 U.S. at ---- - ----, 117 S.Ct. at 1073-74). 1 The Supreme Court has made clear that we first should ask ourselves "Is this conflict really necessary?" Arizonans, 520 U.S. at ----, 117 S.Ct. at 1072. In this case, we find that the ordinance suffers constitutional deficiencies regardless of which of the two proffered interpretations of the basic prohibition is accepted. We conclude that no construction is "fairly possible that will contain the statute

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within constitutional grounds." Id. at ----, 117 S.Ct. at 1074 (internal quotation omitted). As explained below, giving the ordinance's general prohibition a narrow construction renders it unconstitutionally vague. Under a broader construction, the ordinance does not survive strict scrutiny because it is not narrowly tailored to meet the City's compelling interests. Thus, awaiting a definitive interpretation of the ordinance by the California Supreme Court will not avoid the federal constitutional infirmities of the ordinance, and we answer in the affirmative the threshold query about the necessity of this conflict.


We review de novo an order granting summary judgment on the constitutionality of a statute or ordinance. See Valley Bank of Nev. v. Plus Sys., Inc., 914 F.2d 1186, 1189 (9th Cir.1990). The constitutionality of any juvenile curfew is a matter of first impression in this circuit. 2


"The void-for-vagueness doctrine incorporates several important due process principles." Finley v. National Endowment for the Arts, 100 F.3d 671, 675 (9th Cir.1996). To avoid unconstitutional vagueness, an ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). In a facial vagueness challenge, the ordinance need not be vague in all applications if it reaches a "substantial amount of constitutionally protected conduct." Id. at 359 n. 8, 103 S.Ct. at 1859 n. 8 (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)). The need for definiteness is greater when the ordinance imposes criminal penalties on individual behavior or implicates constitutionally protected rights than when it regulates the economic behavior of businesses. Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193-94. This greater need for definiteness is present in this case because the San Diego ordinance restricts individual freedom through criminal law.

For the reasons explained below, we conclude that the plain language of the ordinance when read as a whole is vague. We reject the argument that the ordinance is saved by a narrowing construction of the phrase "loiter, wander, idle, stroll or play" made by the California courts because that construction itself does not survive constitutional scrutiny on vagueness grounds.

The key to determining whether the San Diego ordinance is unconstitutionally vague is to determine the breadth of the ordinance's basic proscription in light of the enumerated exceptions. The City contends that the...

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