Ashton v. Brown

Decision Date01 September 1992
Docket NumberNo. 102,102
PartiesRichard ASHTON et al. v. Vanessa BROWN et al. Vanessa BROWN et al. v. Richard ASHTON et al. ,
CourtMaryland Court of Appeals

N. Lynn Tillery, Frederick, Joseph F. Cunningham (Joseph F. Cunningham & Associates, all on brief), Washington, DC, for petitioner.

Willie J. Mahone (Daniel Q. Mahone, both on brief) Frederick, for respondent.

Kevin A. Dunne (David R. Johanson, Venel D. Brown, Ober, Kaler, Grimes & Shriver, all on brief), Baltimore, for American Civil Liberties Union of Maryland, amicus curiae.

Benjamin L. Brown, Washington, DC, and Neal M. Janey, Burton H. Levin, Baltimore, for National Instit. of Mun. Law Officers, amicus curiae.

Argued before ELDRIDGE, RODOWSKY, McAULIFFE, * CHASANOW, KARWACKI, BELL and CHARLES E. ORTH, Jr., ** Judge of the Court of Appeals (Retired, Specially Assigned), JJ.

ELDRIDGE, Judge.

The principal issue in this case concerns the constitutionality of the City of Frederick's juvenile curfew ordinance. As we shall hold that the ordinance is unconstitutional, we shall also consider claims for damages against the City of Frederick and members of its police department, arising out of the enforcement of the ordinance against the plaintiffs.

I.

The plaintiffs in this case sought a declaratory judgment, injunctive relief, and money damages. The case was disposed of in the trial court by an order entered on the docket simply granting the defendants' motion for summary judgment and awarding judgment for the defendants for costs.

In reviewing the grant of summary judgment, this Court must consider the facts reflected in the pleadings, depositions, answers to interrogatories and affidavits in the light most favorable to the non-moving parties, the plaintiffs. Even if it appears that the relevant facts are undisputed, "if those facts are susceptible to inferences supporting the position of the party opposing summary judgment, then a grant of summary judgment is improper." Clea v. City of Baltimore, 312 Md 662, 677, 541 A.2d 1303, 1310 (1988). See also, e.g., Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 145, 642 A.2d 219, 224 (1994); Gross v. Sussex, 332 Md. 247, 256, 630 A.2d 1156, 1160 (1993). Consequently, in this opinion we have set forth the facts in the light most favorable to the plaintiffs. Moreover, an appellate court ordinarily may uphold the grant of a summary judgment only on the grounds relied on by the trial court. See, e.g., Gross v. Sussex, supra, 332 Md. at 254 n. 3, 630 A.2d at 1159 n. 3; Beckenheimer's v. Alameda, 327 Md. 536, 545 n. 5, 611 A.2d 105, 109 n. 5 (1992); Federated Stores v. Le, 324 Md. 71, 79, 595 A.2d 1067, 1071 (1991), and cases there cited.

The Frederick curfew ordinance provides that it is unlawful for a "child," defined as a person under the age of eighteen, to "remain in or upon any public place or any establishment" during the nighttime hours. Frederick City Code §§ 15-9(a), 15-10 (1966, Supp.1992). 1 An "establishment" is defined as "any privately owned place of business carried on for a profit or any place of amusement or entertainment to which the public is invited." § 15-9(c). The curfew ordinance expressly makes it "a misdemeanor" for parents to "knowingly permit" their children to violate the curfew, and for the "operator of an establishment[,] ... his agents or employees" to "knowingly permit" a child to remain on the premises during curfew hours. §§ 15-12, 15-13, 15-14(b-c). The misdemeanor defined in these sections is punishable by a maximum fine of $100.00 for each violation. § 15-14. The ordinance does not, however, provide that a minor is guilty of a misdemeanor for violating the curfew. Instead, the ordinance states that "[a]ny city police officer who finds a child violating any provision of section 15-10 shall take such child into custody as a child in need of supervision...." § 15-14(a). 2 A minor guilty of two curfew infractions within a twelve month period must be referred to the State Department of Juvenile Services. Ibid.

The curfew ordinance also contains broad exceptions. Section 15-11 states that "[t]he provisions of section 15-10 shall not apply to any child accompanied by a parent, or to a child upon an errand directed by such minor's parent, or to a child attending a cultural, scholastic, athletic, or recreational activity supervised by a bona fide organization, or to any child who is engaged in lawful employment during the curfew hours." The word "parent" is defined in § 15-9(e) to include, inter alia, "any person" 21 years old or older who has "temporary care or custody or responsibility for the supervision of a child." The ordinance does not define the term "bona fide organization."

Plaintiffs Tyeicka Bowens and Vanessa Brown were detained for suspected violations of the juvenile curfew ordinance during a curfew enforcement action at the Rainbow Hunan Restaurant ("the Rainbow") on Market Street in downtown Frederick. The Rainbow had lost its liquor license. In an effort to supplement their reduced income from the restaurant, the Rainbow's owners, Mr. and Mrs. Chi, had arranged with George Busey and his wife, specialists in promoting entertainment for young people, for a series of evening events at the Rainbow featuring live bands and dancing. Most of the young people who went to the dances at the Rainbow were African-Americans. Rap bands were a prominent part of the Buseys' concert series, and the music was loud.

Live entertainment at the Rainbow was controversial. During the summer and fall of 1990, Frederick residents complained to Mayor Paul Gordon about noise in downtown Frederick, particularly around the Rainbow. On October 19, 1990, Mayor Gordon took part in a candidates' forum, attended by fifty or sixty of Frederick's citizens. During the forum, the Mayor announced that he would respond to the citizens' complaints by initiating immediate, vigorous enforcement of the juvenile curfew ordinance.

The Mayor and the Police Chief, Major Richard Ashton, arranged a curfew crackdown at the Rainbow for the late evening of October 20 and early morning of October 21, 1990, during one of the Buseys' scheduled dances. While Chief of Police Ashton and other officers entered the Rainbow to check that the patrons were over eighteen, Officer Steven Scalf was instructed to stand outside and look for possible curfew violators. Officer Scalf detained Vanessa Brown, who was nineteen years old, as she walked along the street in the direction of the Rainbow. Brown was photographed, handcuffed and searched. The search included a "pat down" of Brown's "entire body, including the inside of [her] legs." The police had stationed a bus in front of the Rainbow so that suspected curfew violators could conveniently be detained there. Brown was held on the bus for approximately forty minutes.

Tyeicka Bowens, sixteen years old, was arrested inside the Rainbow. 3 Like Brown, Bowens was photographed, handcuffed and held on the bus. Bowens's detention lasted approximately three hours. She asserted that she was "frightened, intimidated and embarrassed" and that she was "afraid of being incarcerated."

According to affidavits filed by the plaintiffs, twenty-eight suspected curfew violators were detained in the crackdown at the Rainbow, all of whom were African-American. 4 Some of the plaintiffs' claims for relief were based upon their allegation that the enforcement action was racially motivated. 5 As Vanessa Brown put it, "Plaintiff does not believe that white teenagers have ever been rounded up in such a manner, even though it is community knowledge that white teenagers congregate beyond the curfew hours at the retail establishments." 6

Indeed, the Rainbow may have been the only real target of the curfew crackdown. Although Chief Ashton described the police action on the night of October 20-21 as a "curfew enforcement on Market Street encompassing four restaurants," and Mayor Gordon stated that he intended to "include all restaurants ... and not just the Rainbow," the police concentrated their efforts on the Rainbow. The police action there was thorough and systematic. A number of uniformed officers entered the restaurant, explained to the owners that they were there to enforce the curfew ordinance, and checked the ages of a large number of the patrons. Other officers were stationed outside to arrest any minors trying to leave the Rainbow. The police positioned a bus at the Rainbow to collect and detain the young people. There is no indication that any minor was taken to the bus from any place except the Rainbow. Officer Scalf described moving on to visit other Market Street establishments once the Rainbow enforcement action was complete, but, although he observed that they were crowded, he spent no more than "two or three minutes" in each. There is no suggestion that the police explained to any other proprietor that they were undertaking a mass curfew enforcement, nor that any other methodical check for minors was made. There is no indication that a curfew arrest was made in any place except the Rainbow. Chief Ashton stated that the police issued "noise warnings" to the other Market Street restaurants.

Vanessa Brown and Tyeicka Bowens brought this action in the Circuit Court for Frederick County. In their amended complaint they named as defendants the City of Frederick, Officer Steven Scalf, "individually and in his official capacity," and Police Chief Richard Ashton, "individually and in his official capacity." The plaintiffs sought a declaratory judgment that the Frederick curfew ordinance suffered from overbreadth and infringed upon the First and Fourteenth Amendments, as well as the Maryland Declaration of Rights. Alternatively, the plaintiffs sought a declaration that the ordinance was unconstitutionally vague. In addition to a declaratory judgment, they sought an injunction against enforcement of the ordinance. The plaintiffs also asserted that,...

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