188 F.3d 531 (D.C. Cir. 1999), 96-7239, Hutchins v. DC

Docket Nº:96-7239
Citation:188 F.3d 531
Case Date:June 18, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 531

188 F.3d 531 (D.C. Cir. 1999)




No. 96-7239

United States Court of Appeals, District of Columbia Circuit

June 18, 1999

Argued En Banc January 27, 1999

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Appeal from the United States District Court for the District of Columbia (95cv02050)

Steven J. Rosenbaum argued the cause for appellant. With him on the briefs were John M. Ferren, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Jason A. Levine. Charles F. Ruff, White House Counsel, entered an appearance.

Mark E. Nagle, Assistant United States Attorney, argued the cause as amicus curiae for appellant. With him on the brief were Wilma A. Lewis, United States Attorney, R. Craig Lawrence and Kimberly N. Brown, Assistant United States Attorneys.

Robert S. Plotkin argued the cause for appellees. With him on the brief was Arthur B. Spitzer.

Michael P. Farris was on the brief for amicus curiae Home School Legal Defense Association.

Before: Edwards, Chief Judge, Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Circuit Judges Wald, Ginsburg, Henderson, and Garland join in Parts I, III, & IV.

Opinion Concurring in part and Concurring in the result filed by Chief Judge Edwards, with whom Circuit Judges Wald and Garland join in Part II.

Opinion Concurring in part and Concurring in the result filed by Circuit Judges Wald and Garland.

Opinion Concurring in part and Dissenting in part filed by Circuit Judge Rogers, with whom Circuit Judge Tatel joins, and Circuit Judge Wald joins in Parts II and III, and Circuit Judge Garland joins in Part III.

Dissenting opinion filed by Circuit Judge Tatel.

Silberman, Circuit Judge:

The District of Columbia ap-peals the district court's grant of summary judgment to plaintiffs/appellees, a group of minors, parents, and a private business, enjoining enforcement of the District's Juvenile Curfew, and holding that it violates the fundamental rights of minors and their parents and is unconstitutionally vague. A divided panel of our circuit affirmed the district court, and rehearing en banc was granted. A plurality believes that the curfew implicates no fundamental rights of minors or their parents. Even assuming the curfew does implicate such rights, we hold that it survives heightened scrutiny. And, it does not violate the First or Fourth Amendment rights of minors.


The District of Columbia Council, determining that juvenile crime and victimization in the District was a serious problem-and growing worse-unanimously adopted the Juvenile Curfew Act of 1995, which bars juveniles 16 and under from being in a public place unaccompanied by a parent or without equivalent adult supervision from 11:00 p.m. on Sunday through Thursday to 6:00 a.m. on the following day and from midnight to 6:00 a.m. on Saturday and Sunday, subject to certain enumerated defenses. See D.C. Code Ann. §§ 6-2182, 6-2183 (1996). The curfew provides that a minor (defined as "any person under the age of 17 years," but not "a judicially emancipated minor or a married minor") cannot remain in a public place or on the premises of any establishment within the District of Columbia during curfew hours. A parent or guardian commits an offense by knowingly permitting, or through insufficient control allowing,

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the minor to violate the curfew. Owners, operators, or employees of public establishments also violate the curfew by knowingly allowing the minor to remain on the premises, unless the minor has refused to leave and the owner or operator has so notified the police. The curfew contains eight "defenses": it is not violated if the minor is (1) accompanied by the minor's parent or guardian or any other person 21 years or older authorized by a parent to be a caretaker for the minor; (2) on an errand at the direction of the minor's parent, guardian, or caretaker, without any detour or stop; (3) in a vehicle involved in interstate travel; (4) engaged in certain employment activity, or going to or from employment, without any detour or stop; (5) involved in an emergency; (6) on the sidewalk that abuts the minor's or the next-door neighbor's residence, if the neighbor has not complained to the police; (7) in attendance at an official school, religious, or other recreational activity sponsored by the District of Columbia, a civic organization, or another similar entity that takes responsibility for the minor, or going to or from, without any detour or stop, such an activity supervised by adults; or (8) exercising First Amendment rights, including free exercise of religion, freedom of speech, and the right of assembly. If, after questioning an apparent offender to determine his age and reason for being in a public place, a police officer reasonably believes that an offense has occurred under the curfew law and that no defense exists, the minor will be detained by the police and then released into the custody of the minor's parent, guardian, or an adult acting in loco parentis. If no one claims responsibility for the minor, the minor may be taken either to his residence or placed into the custody of the Family Services Administration until 6:00 a.m. the following morning. Minors found in violation of the curfew may be ordered to perform up to 25 hours of community service for each violation, while parents violating the curfew may be fined up to $500 or required to perform community service, and may be required to attend parenting classes.

Appellees sued the District of Columbia seeking an injunction against enforcement of the curfew and a declaration that the curfew violates the minors' Fifth Amendment Due Process and Equal Protection rights to freedom of movement; violates the parents' Fifth Amendment due process rights to raise their children; violates the minors' First Amendment rights to freedom of expression and assembly; violates the minors' Fourth Amendment right to be free from unreasonable searches and seizures; and is unconstitutionally vague. The district court granted summary judgment to appellees and enjoined enforcement of the curfew. Hutchins v. District of Columbia, 942 F.Supp. 665, 668 (D.D.C. 1996). The court concluded that "it is a well-settled legal principle that the right to free movement is a fundamental right generally," and although the "[s]tate has a great interest in regulating the activities of, and providing protection for, minors," this "interest does not automatically dilute the constitutional rights of [ ] minors." Id. at 671. Thus, minors who are not in the custody of the state have a fundamental right to free movement. Since the curfew intrudes on minors' right to free movement, as well as on the parents' fundamental rights to direct their children's upbringing, it must be subjected to strict scrutiny. Accordingly, the law must be narrowly tailored to promote the District's asserted compelling interests in protecting the welfare of minors by reducing the likelihood that minors will perpetrate or become victims of crime, and by promoting parental responsibility by assisting parents in exercising reasonable supervision of minors entrusted to their care. The district court found that the statistical data produced by the District did not meet that test. The court also thought that four of the curfew's defenses-the First Amendment defense, the emergency defense, the responsible entity defense, and the sidewalk defense-were "woefully vague" and

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did not withstand constitutional scrutiny. Appellees' First and Fourth Amendment claims were not reached.



Appellees contend (and the district court determined) that the curfew infringes on a substantive fundamental right-the right to free movement-and as a substantive right it cannot be taken away merely through "due process."1 Of course a right to free movement is a synonym for the right to liberty; when one is put in jail it is obvious that one's right to free movement has been curtailed, but that is constitutionally permissible if the person whose liberty has been curtailed is afforded due process. But any government impingement on a substantive fundamental right to free movement would be measured under a strict scrutiny standard and would be justified only if the infringement is narrowly tailored to serve a compelling state interest. See Reno v. Flores, 507 U.S. 292, 301-02 (1993) (citing Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). But does such a substantive right exist?

Although appellees cite numerous cases in support of the proposition that "the right to free movement is as old as the Republic," the cases do not support such a sweeping assertion. It is true that the right to interstate travel is wellestablished. See Saenz v. Roe, 119 S.Ct. 1518, 143 L.Ed.2d 689 (May 17, 1999); Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969). Although the precise source of this right remains somewhat obscure, see Shapiro, 394 U.S. at 629 n.8, its origins reflect a concern over state discrimination against outsiders rather than concerns over the general ability to move about. See Saenz v. Roe, 119 S.Ct. 1518, 143 L.Ed.2d 689 (grounding at least one component of the right to interstate travel in the Privileges and Immunities Clause of the Fourteenth Amendment); United States v. Guest, 383 U.S. 745, 758 (1966) (describing the right to interstate travel as originating in the Articles of Confederation and as being a "necessary concomitant of the stronger Union the Constitution created"); Zobel v. Williams, 457 U.S. 55, 79-81 (1982) (O'Connor, J., Concurring in the judgment) (describing the right as originating in the Privileges and Immunities Clause of Art. IV); Edwards v. California, 314 U.S. 160, 173-74 (1941)...

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