Anonymous v. Rochester

• Decision Date: 10 October 2008
• Docket Number: CA 07-02672
• Citation: 865 N.Y.S.2d 804,2008 NY Slip Op 07724,56 A.D.3d 139
• Parties: JIOVON ANONYMOUS, an Infant, by his Father and Legal Guardian, THOMAS ANONYMOUS, et al., Appellants, v. CITY OF ROCHESTER et al., Respondents. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

56 A.D.3d 139

865 N.Y.S.2d 804

2008 NY Slip Op 07724

JIOVON ANONYMOUS, an Infant, by his Father and Legal Guardian, THOMAS ANONYMOUS, et al., Appellants, v. CITY OF ROCHESTER et al., Respondents. (Appeal No. 1.)

CA 07-02672

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

October 10, 2008.

Davidson Fink LLP, Rochester (Michael Burger of counsel), for plaintiffs-appellants.

Thomas S. Richards, Corporation Counsel, Rochester (Jeffrey Eichner of counsel), for defendants-respondents.

Daniel J. Freeman, New York City, for New York Civil Liberties Union Foundation, amicus curiae.

OPINION OF THE COURT

GREEN, J.

In 2006 the Rochester City Council (City Council) adopted an ordinance codified as chapter 45 of the Code of the City of Rochester (Code) establishing a nighttime curfew for juveniles (Ordinance No. 2006-246 [hereafter, ordinance]). The ordinance took effect on September 5, 2006.¹ With certain exceptions (see Code § 45-4), the ordinance makes it unlawful for minors, defined as persons under the age of 17 pursuant to section 45-2, to be in a public place between the hours of 11:00 P.M. and 5:00 A.M. Sunday through Thursday and between midnight and 5:00 A.M. on Friday and Saturday (see Code § 45-3).

Plaintiff Thomas Anonymous (plaintiff father) resides in defendant City of Rochester (City) with his son, plaintiff Jiovon Anonymous (plaintiff son), who was born in January 1992. Plaintiffs commenced this action seeking a declaration that certain sections of the ordinance are unconstitutional, and seeking to enjoin defendants from enforcing the ordinance,² and plaintiffs thereafter moved for judgment granting that relief. Plaintiffs allege that the ordinance is inconsistent with several state statutes and violates a number of rights guaranteed to plaintiffs under the New York and United States Constitutions. Supreme Court denied plaintiffs' motion and granted defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (7). For the reasons that follow, we conclude that plaintiffs are entitled to the relief sought.

I

In section 45-1 of the Code, the City Council sets forth its "Findings and purpose" with respect to the ordinance as follows:

"A. A significant number of minors are victims of crime and are suspects in crimes committed during the nighttime hours, hours during which minors should generally be off the streets and getting the sleep necessary for their overall health and quality of life. Many of these victimizations and criminal acts have occurred on the streets at night and have involved violent crimes, including the murders of teens and preteens.

"B. While parents have the primary responsibility to provide for the safety and welfare of minors, the City also has a substantial interest in the safety and welfare of minors. Moreover, the City has an interest in preventing crime by minors, promoting parental supervision through the establishment of reasonable standards, and in providing for the well-being of the general public.

"C. A curfew will help reduce youth victimization and crime and will advance the public safety, health and general welfare of the citizens of the City."

The record indicates that the City Council and other city officials determined to address the problem of youth victimization and crime by means of a curfew following the violent deaths of three boys between June 2001 and October 2005. First, a 10-year-old boy was shot to death in front of 185 Whitney Street as he watched a dispute over a drug deal. Second, in an unrelated incident involving a drug house, a 12-year-old boy was shot and killed at 18 Langham Street. Third, a 14-year-old boy was stabbed to death during an altercation with adult bar patrons on Meigs Street. Following those tragic incidents, the City Council held community meetings and began to consider enacting a juvenile curfew ordinance. The Chair of the City Council's Public Safety Committee, along with representatives from the City's Police Department (Police Department) and the community, traveled to Minneapolis, Minnesota to review the operation of that city's curfew ordinance. Upon his return, the Chair of the Public Safety Committee began advocating the adoption of an ordinance modeled on the Minneapolis ordinance. In addition, one of the police officers drafted a report for defendant Chief of Police setting forth statistical information concerning juvenile crime and victimization in the City, which was distributed to defendant Mayor and the City Council. Enactment of a juvenile curfew ordinance thereafter garnered the support of the Chief of Police, the Mayor and the City Council President. After conducting public hearings, the City Council adopted the ordinance.

The ordinance provides that, during the designated hours (see Code § 45-3), it is unlawful for a minor to be in a public place unless "the minor can prove that" one of the six enumerated exceptions applies (Code § 45-4). The first exception is for minors accompanied by a parent, guardian or "other responsible adult" (Code § 45-3 [A]). The term "responsible adult" is defined as "[a] person 18 years of age or older specifically authorized by law or by a parent or guardian to have custody and control of a minor" (Code § 45-2). Second, a minor may be in a public place during curfew hours if he or she is engaged in lawful employment or is en route to or from such employment (see Code § 45-4 [B]). The third exception is for a minor "involved in an emergency situation" (Code § 45-4 [C]), and the term "emergency" is defined as "[a] circumstance or combination of circumstances requiring immediate action to prevent property damage, serious bodily injury or loss of life" (Code § 45-2). The fourth exception is for a minor "going to, attending, or returning home from an official school, religious, or other recreational activity sponsored and/or supervised by a public entity or a civic organization" (Code § 45-4 [D]). Pursuant to the fifth exception, a minor may be in a public place during curfew hours "for the specific purpose of exercising fundamental rights such as freedom of speech or religion or the right of assembly protected by the First Amendment of the United States Constitution or Article I of the Constitution of the State of New York, as opposed to generalized social association with others" (Code § 45-4 [E]). Finally, the sixth exception is for minors "engaged in interstate travel" (Code § 45-4 [F]).

A violation of the ordinance constitutes a "violation" as defined in the Penal Law (see Code § 45-5), and a police officer may detain a minor or take a minor into custody for a curfew violation "if the police officer, after speaking with the minor and considering the facts and surrounding circumstances . . . [r]easonably believes that the minor has violated" the ordinance and that none of the six exceptions set forth in the ordinance applies (Code § 45-6 [B]). If the minor is taken into custody, the officer "shall take the minor to a location designated by the Chief of Police" (Code § 45-6 [C]).

Police Department General Order 425, "Curfew Ordinance Enforcement," provides that the Police Department's policy is "to handle curfew violations in the least coercive reasonable alternative manner based on the [officer's] discretion taking into consideration the needs and best interests of the Minor, as well as the need for protection of the community." General Order 425 further provides that an officer who believes that a minor is in violation of the curfew ordinance may direct the minor to proceed directly home with a warning, take the minor into protective custody, transport the minor to a parent, guardian or other responsible adult, or transport the minor to a curfew facility, i.e., the Curfew Center at Hillside Children's Center. In addition, General Order 425 sets forth the procedures for searching, transporting and handcuffing minors taken into custody for a violation of the curfew ordinance.

II

Our analysis of the ordinance begins with our recognition that the City has broad power to enact local legislation for "[t]he government, protection, order, conduct, safety, health and well-being of persons or property therein" (Municipal Home Rule Law § 10 [1] [ii] [a] [12]; see NY Const, art IX, § 2 [c] [ii] [10]; New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1987], affd 487 US 1 [1988]). Despite its broad police power, however, the City "cannot adopt laws that are inconsistent with the Constitution or with any general law of the State" (Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500, 505 [1991]; see Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96 [1987]). Thus, while a juvenile curfew ordinance may generally be a permissible exercise of a municipality's police power (see Ramos v Town of Vernon, 353 F3d 171, 172 [2003]; Matter of Michael G., 99 Misc 2d 699, 700 [1979]; 2005 Ops Atty Gen No. 13), we are concerned here with the specific terms of the ordinance challenged by plaintiffs. We hold that the ordinance is inconsistent with general laws of the State and with the New York and United States Constitutions.

III

We conclude first that the penal provisions of chapter 45 are inconsistent with Family Court Act § 305.2 and Penal Law § 30.00. Section 45-5 of the Code, entitled "Penalty," provides that a curfew violation under section 45-3 "shall constitute a `violation' as that term is defined in the New York State Penal Law," i.e., (a criminal offense punishable by a term of imprisonment up to 15 days (see Penal Law § 10.00 [3]). Section 45-6 (B) authorizes a police officer to "detain a minor or take a minor into custody based on a violation of § 45-3." Pursuant to Family Court Act § 305.2 (2), however, a police officer is authorized to take a child under the age of 16 into custody without a warrant only in cases where an adult could be arrested for a crime, and a violation does not fall within the definition of a crime (see ...