Hodgkins v. Peterson, IP 01-1032-C T/K.

• Decision Date: 06 November 2001
• Docket Number: IP 01-1032-C T/K.
• Citation: 175 F.Supp.2d 1132
• Court: U.S. District Court — Southern District of Indiana
• Parties: Nancy HODGKINS, Colin Hodgkins by Next Friend and Natural Parent Nancy Hodgkins, Caroline Hodgkins, by Next Friend and Natural Parent Nancy Hodgkins, Plaintiffs, v. Bart PETERSON, in his official capacity as Mayor of the City of Indianapolis, et al., Defendants.

175 F.Supp.2d 1132

Nancy HODGKINS, Colin Hodgkins by Next Friend and Natural Parent Nancy Hodgkins, Caroline Hodgkins, by Next Friend and Natural Parent Nancy Hodgkins, Plaintiffs, v. Bart PETERSON, in his official capacity as Mayor of the City of Indianapolis, et al., Defendants.

IP 01-1032-C T/K.

United States District Court, S.D. Indiana, Indianapolis Division.

November 6, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, for plaintiffs.

A. Scott Chinn, Corp. Counsel for the City of Indianapolis, Thomas M. Fisher, Indianapolis, IN, for defendants.

ENTRY ON MOTION FOR PRELIMINARY INJUNCTION

TINDER, District Judge.

This case presents yet another constitutional challenge to a nighttime juvenile curfew law in the State of Indiana. Plaintiffs, Nancy Hodgkins, and Colin and Caroline Hodgkins, on their own behalf and as representatives of all parents and legal guardians of minors who are residents of Marion County, Indiana and all minors who are residents of Marion County, Indiana, respectively, challenge the constitutionality of Indiana's new juvenile curfew law enacted earlier this year. They claim the law is unconstitutionally overbroad because it violates minors' First Amendment rights as it subjects to arrest minors engaged in First Amendment activities. Plaintiffs also claim that the law unlawfully impinges upon the substantive due process rights of parents and legal guardians to raise and control their minor children. Plaintiffs seek a preliminary injunction against Defendants Bart Peterson, in his official capacity as Mayor of the City of Indianapolis, Jack Cottey, in his official capacity as Sheriff of Marion County, and Scott Newman, in his official capacity as Prosecutor of Marion County. The State of Indiana has intervened to defend the constitutionality of the new juvenile curfew law. Plaintiffs seek to enjoin Defendants from enforcing the curfew law. Defendants oppose the motion. Upon considering the motion and the parties' submissions and having heard oral argument, the court concludes that Indiana's new curfew law withstands constitutional challenge.

I. FINDINGS OF FACT¹

Indiana has in effect a juvenile curfew law which makes it unlawful for a child fifteen, sixteen or seventeen years of age to be in a public place: between 1 a.m. and 5 a.m. on Saturday or Sunday; after 11 p.m. on Sunday, Monday, Tuesday, Wednesday or Thursday; or before 5 a.m. on Monday, Tuesday, Wednesday, Thursday, or Friday. See Ind.Code § 31-37-3-2. For a child less than fifteen years of age, it is unlawful for such child to be in any public place after 11 p.m. or before 5 a.m. on any day. See Ind.Code § 31-37-3-3. Under Indiana's curfew law:

(a) It is a defense to a violation under this chapter that the child was emancipated ... at the time that the child engaged in the prohibited conduct.

(b) It is a defense to a violation under this chapter that the child engaged in the prohibited conduct while:

(1) accompanied by the child's parent, guardian or custodian;

(2) accompanied by an adult specified by the child's parent, guardian or custodian;

(3) participating in, going to, or returning from:

(A) lawful employment;

(B) a school sanctioned activity;

(C) a religious event;

(D) an emergency involving the protection of a person or property from an imminent threat of serious bodily injury or substantial damage;

(E) an activity involving the exercise of the child's rights protected under the First Amendment to the United States Constitution or Article 1, Section 31 of the Constitution of the State of Indiana, or both, such as freedom of speech and the right of assembly; or

(F) an activity conducted by a non-profit or governmental entity that provides recreation, education, training, or other care under the supervision of one (1) or more adults; or

(4) engaged in interstate or international travel from a location outside of Indiana to another location outside Indiana.

Ind.Code § 31-37-3-3.5.² A child under 18 years of age commits a delinquent act if he or she violates the curfew law, see Ind. Code § 31-37-2-5. An adult commits the crime of contributing to the delinquency of a minor if he or she "knowingly or intentionally encourages, aids, induces, or causes a person under eighteen (18) years of age to commit an act of delinquency (as defined by IC 31-37-1 or IC 31-37-2)." Ind.Code § 35-46-8-1.

Indiana's new curfew law was enacted in response to this judge's decision striking down the curfew law, Indiana Code Section 31-37-3-1 (repealed 2001), see Hodgkins v. Goldsmith, No. IP 99-1528-C-T/G, 2000 WL 892964 (S.D.Ind. July 3, 2000), amended by 2000 WL 1201599 (S.D.Ind. July 20, 2000) (Hodgkins I).³ Hodgkins I holds that the former curfew law was overly broad and not narrowly tailored to serve the State's significant interests because it lacked an exception for First Amendment activities.

Also in response to this court's decision in Hodgkins I, the City of Indianapolis adopted a juvenile curfew ordinance containing an express exception for First Amendment activities. That ordinance was challenged under the Fourteenth Amendment as an unlawful impingement upon the substantive due process right of parents and legal guardians to raise and control their children without undue government interference, see Hodgkins v. Peterson, No. IP00-1410-C-T/G, 2000 WL 33128726 (S.D.Ind. Dec. 14, 2000) (Hodgkins II). The challenge proved unsuccessful as the undersigned denied the plaintiff's motion for preliminary injunction, concluding that she had not shown some likelihood of succeeding on the merits of her claim. The decisions in both Hodgkins I and Hodgkins II were appealed to the Court of Appeals for the Seventh Circuit. During the pendency of those appeals, the Indiana General Assembly enacted the current curfew law, thus mooting the appeals which then were dismissed.

Plaintiff Nancy Hodgkins is a Marion County resident. Plaintiffs Colin Hodgkins and Caroline Hodgkins are two of her minor children. Ms. Hodgkins, on behalf of her minor children, wants them to have the opportunity to participate in activities protected by the First Amendment, but believes that, given the Indiana curfew law, they will run the risk of being arrested if they engage in these activities. Plaintiffs believe that there are other youths who may wish to engage in activities protected by the First Amendment, including religious, free speech, and assembly activities, who will be discouraged from doing so since they are subject to arrest under the amended curfew law even if they are engaging in these activities.

Nancy Hodgkins desires to assert her rights, as a parent, to give her children more privileges and responsibilities as they grow older if she believes that they can handle them. She believes this is part of a parent's job of preparing a child for adulthood and should involve the parent having the right to determine if his or her child is mature enough to accept the responsibility of being out late, possibly past curfew hours. Nancy Hodgkins believes that a parent has the right to decide how late the child will be out depending on who they are with, what they are doing, and where they are going. She believes that the curfew law deprives parents of the right to allow their children to be in public, with parental permission, after the times proscribed by the law and indeed makes it a crime, under Indiana Code Section 35-46-1-8, for a parent to allow a child to be out after curfew unless the child is planning to engage in the behavior specified in the defenses to a curfew violation listed in Indiana Code Section 31-37-3-3.5.

Defendant Bart Peterson is the duly elected Mayor of the City of Indianapolis, Indiana. Defendant Jack Cottey is the duly elected Sheriff of Marion County, Indiana, which encompasses the City of Indianapolis. Defendant Scott Newman is the duly elected Prosecutor of Marion County, Indiana.

The evidence supports a finding that crime in Indianapolis and Marion County increases at night and that children are thus most vulnerable to victimization at night.⁴ (See Aff. of Jeffrey S. Decker ¶ 14 ("the nocturnal curfew hours are some of the busiest hours for IPD [Indianapolis Police Department] in terms of addressing and dealing with criminal offenses generally, the curfew hours are, in my experience, the most dangerous hours for juveniles to be out ... without adult supervision"); Aff. of Timothy J. Motsinger ¶ 20 ("during the nocturnal [curfew] hours ... young people were the most vulnerable to and at risk of victimization"); Aff. of Richard Witmer ¶ 7 (stating that the busiest hours for the Beech Grove Police Department "were between the hours of 6 p.m. to 6 a.m. and, therefore, were potentially dangerous hours for juveniles because of lack of adult supervision"); Aff. of Brian Toepp ¶ 6 ("The community is also at risk due to the fact that those children who are in the community during the `curfew' time ... have a high risk of becoming victims. ...")).

II. CONCLUSIONS OF LAW

A. PRELIMINARY INJUNCTION

"A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quotation omitted); see also Ind. Civil Liberties Union v. O'Bannon, 259 F.3d 766, 770 (7th Cir.2001) ("A preliminary injunction is an extraordinary remedy[.]"), reh'g en banc denied. A party seeking a preliminary injunction must demonstrate some likelihood of success on the merits, an inadequate remedy at law, and irreparable harm if the preliminary injunction is denied. See, e.g., O'Bannon, 259 F.3d at 770. If the moving party demonstrates these elements, then the court must balance the harm to the non-movant if an injunction is granted, the harm to the movant if the injunction is...