159 F.3d 843 (4th Cir. 1998), 97-1723, Schleifer by Schleifer v. City of Charlottesville

Docket Nº:97-1723.
Citation:159 F.3d 843
Party Name:Daniel SCHLEIFER, a minor by Barry SCHLEIFER, his father; William McCutcheon, a minor by M. Parthenia Monagan, his mother; Lisa Briggs, a minor by Anne Briggs, her mother; Nora Lally-Graves, a minor by Mary Ann Lally-Graves, her mother; Jill Landers Jacquith, a minor by Harry James Landers, her father; Anne Briggs; Harry James Landers; Waldo David
Case Date:October 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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159 F.3d 843 (4th Cir. 1998)

Daniel SCHLEIFER, a minor by Barry SCHLEIFER, his father;

William McCutcheon, a minor by M. Parthenia Monagan, his

mother; Lisa Briggs, a minor by Anne Briggs, her mother;

Nora Lally-Graves, a minor by Mary Ann Lally-Graves, her

mother; Jill Landers Jacquith, a minor by Harry James

Landers, her father; Anne Briggs; Harry James Landers;

Waldo David Landers Jaquith, Plaintiffs-Appellants,



No. 97-1723.

United States Court of Appeals, Fourth Circuit

October 20, 1998

Argued May 5, 1998.

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[Copyrighted Material Omitted]

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ARGUED: Mary Catherine Bauer, American Civil Liberties Union Foundation of Virginia, Richmond, Virginia, for Appellants. Lisa Robertson Kelley, Office of City Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Deborah C. Wyatt, Wyatt & Carter, Charlottesville, Virginia, for Appellants. W. Clyde Gouldman, II, Office of City Attorney, Charlottesville, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and ERVIN and MICHAEL, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judge ERVIN joined. Judge MICHAEL wrote a dissenting opinion.


WILKINSON, Chief Judge:

This appeal involves a challenge to the constitutionality of a juvenile nocturnal curfew ordinance enacted by the City of Charlottesville. The district court held that the ordinance did not violate the constitutional rights of minors, their parents, or other affected

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parties and declined to enjoin its enforcement. We agree that the ordinance is constitutional and affirm the judgment of the district court.


On December 16, 1996, the Charlottesville City Council, after several months of study and deliberation, amended Section 17-7 of the City Code to enact a new juvenile nocturnal curfew ordinance. The City Council designed the curfew ordinance to:

(i ) promote the general welfare and protect the general public through the reduction of juvenile violence and crime within the City;

(ii ) promote the safety and well-being of the City's youngest citizens, persons under the age of seventeen (17), whose inexperience renders them particularly vulnerable to becoming participants in unlawful activities, particularly unlawful drug activities, and to being victimized by older perpetrators of crime; and

(iii ) foster and strengthen parental responsibility for children.

Charlottesville, Va., Code § 17-7, Intro.

Effective March 1, 1997, the ordinance generally prohibits minors, defined as unemancipated persons under seventeen, from remaining in any public place, motor vehicle, or establishment within city limits during curfew hours. The curfew takes effect at 12:01 a.m. on Monday through Friday, at 1:00 a.m. on Saturday and Sunday, and lifts at 5:00 a.m. each morning.

The ordinance does not restrict minors' activities that fall under one of its eight enumerated exceptions. Minors may participate in any activity during curfew hours if they are accompanied by a parent; they may run errands at a parent's direction provided that they possess a signed note. The ordinance allows minors to undertake employment, or attend supervised activities sponsored by school, civic, religious, or other public organizations. The ordinance exempts minors who are engaged in interstate travel, are on the sidewalk abutting their parents' residence, or are involved in an emergency. Finally, the ordinance does not affect minors who are "exercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech and the right of assembly." Id. § 17-7(b)(8).

The ordinance sets forth a scheme of warnings and penalties for minors who violate it. For a first violation, a minor receives a verbal warning, followed by a written warning to the minor and the minor's parents. For subsequent violations, the minor is charged with a Class 4 misdemeanor. The ordinance also makes it unlawful for certain other individuals, including parents, knowingly to encourage a minor to violate the ordinance. The full text of the ordinance is included as an appendix to the opinion.

Plaintiffs are five minors under age seventeen who are subject to the ordinance, one eighteen-year-old, and two parents of minor children. The minors allege that, with their parents' permission, they occasionally wish to engage in lawful activities which the curfew will not permit. These activities include attending late movies; getting a "bite to eat"; playing in a band; socializing with older siblings; and attending concerts in Richmond, which would bring them back through Charlottesville during curfew hours. The eighteen-year-old plaintiff alleges that he has been deprived of opportunities to associate with his younger friends by the ordinance. The parent plaintiffs allege that the ordinance interferes with their decisions on which activities, at what times, are appropriate for their children.

Plaintiffs brought this action for declaratory and injunctive relief, alleging that the ordinance violates their rights under the First, Fourth, Fifth and Fourteenth Amendments. At trial, plaintiffs dismissed their Fourth Amendment claims. Following trial, by order dated May 20, 1997, the district court rejected plaintiffs' remaining claims and denied their motion for a permanent injunction. Plaintiffs now appeal.


Initially we must consider the level of scrutiny appropriate to this case. Plaintiffs contend that the ordinance infringes minors'

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constitutional liberties and therefore should be subject to strict scrutiny. It is true that "[a] child, merely on account of his minority, is not beyond the protection of the Constitution." Bellotti v. Baird, 443 U.S. 622, 633, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion) (Bellotti II ). Minors enjoy some rights under the First and Fourteenth Amendments before they attain adulthood. See, e.g., Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). At the same time, the Supreme Court has made abundantly clear that children's rights are not coextensive with those of adults. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); Bellotti II, 443 U.S. at 634, 99 S.Ct. 3035; Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 88 L.Ed. 645 (1944). "Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination--including even the right of liberty in its narrow sense, i.e., the right to come and go at will." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).

In recognition of these customary limitations, "[t]he state's authority over children's activities is broader than over like actions of adults." Prince, 321 U.S. at 168, 64 S.Ct. 438. State laws do not permit children to drive a car before they reach a certain age. E.g., Va.Code Ann. § 46.2-334. Compulsory attendance laws require children to attend school. E.g., id. § 22.1-254; see also Prince, 321 U.S. at 166, 64 S.Ct. 438. Labor laws limit the opportunities of children to engage in gainful employment. E.g., Va.Code Ann. § 40.1-78; see also Prince, 321 U.S. at 166, 64 S.Ct. 438. These types of laws reflect the state's "general interest in youth's well being." Id.; see also City of Dallas v. Stanglin, 490 U.S. 19, 27 & n. 4, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989); Bykofsky v. Borough of Middletown, 401 F.Supp. 1242, 1256-57 (M.D.Pa.1975), aff'd mem., 535 F.2d 1245 (3d Cir.1976).

In light of the case law, two things seem clear. First, children do possess at least qualified rights, so an ordinance which restricts their liberty to the extent that this one does should be subject to more than rational basis review. Second, because children do not possess the same rights as adults, the ordinance should be subject to less than the strictest level of scrutiny. See Carey v. Population Servs. Int'l, 431 U.S. 678, 693 n. 15, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (plurality opinion) (when minors are involved the level of scrutiny "is apparently less rigorous than the 'compelling state interest' test applied to restrictions on the privacy rights of adults"); Danforth, 428 U.S. at 75, 96 S.Ct. 2831. We thus believe intermediate scrutiny to be the most appropriate level of review and must determine whether the ordinance is "substantially related" to "important" governmental interests. See United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980)). We also conclude, however, that the ordinance survives constitutional attack under either a substantial or a compelling state interest standard. The narrow means chosen by the City in the ordinance serve strong and indeed compelling public needs.



The text of the Charlottesville curfew ordinance identifies three legislative purposes: (1) to reduce juvenile violence and crime within the city; (2) to protect juveniles themselves from being swept up in unlawful drug activities and from becoming prey to older perpetrators of crime; and (3) to strengthen parental responsibility for children. These enumerated purposes represent important and compelling governmental interests.

In Schall v. Martin the Supreme Court recognized that "[t]he 'legitimate and compelling

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state interest' in protecting the community from crime cannot be...

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