Brown v. Ashton

• Decision Date: 01 September 1991
• Docket Number: No. 1682,1682
• Citation: 611 A.2d 599,93 Md.App. 25
• Parties: Vanessa BROWN, et al. v. Richard ASHTON, et al
• Court: Court of Special Appeals of Maryland

Page 25

93 Md.App. 25

611 A.2d 599

Vanessa BROWN, et al. v. Richard ASHTON, et al.

No. 1682 Sept. Term, 1991.

Court of Special Appeals of Maryland.

July 9, 1992.

Reconsideration Granted in Part

Sept. 1, 1992, Opinion Corrected

Sept. 28, 1992.

Certiorari Granted November 17, 1992.

Willie J. Mahone (Daniel Q. Mahone, on the brief), Frederick, for appellants

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

Joseph F. Cunningham (Megan M. Heinze and Joseph F. Cunningham & Associates, on the brief), Washington, D.C., for appellees.

Argued before CATHELL, MOTZ and HARRELL, JJ.

MOTZ, Judge.

This appeal presents questions as to the constitutionality of a juvenile curfew ordinance and civil liability for acts done in enforcing the ordinance.

FACTS AND PROCEEDINGS BELOW

On June 15, 1978, the Board of Aldermen of the City of Frederick enacted an ordinance aimed at restricting the nighttime activities of persons under 18, within the city limits. The curfew imposed by the Board provides that it is illegal for a "child," defined as "any person under the age of eighteen (18) years," to "remain in or upon any public place or any establishment between the hours of 11:59 p.m. Saturday and 6:00 a.m. Sunday; or between the hours of 11:00 p.m. and 6:00 a.m. of the following day on any other day of the week." Frederick City Code, §§ 15-9, 15-10 (1991). The ordinance exempts from the curfew children accompanied by a parent or guardian, children "upon an errand directed by" a parent or guardian, children "attending a cultural, scholastic, athletic, or recreational activity supervised by a bona fide organization," and children who are "engaged in gainful lawful employment during the curfew hours." § 15-11.

In addition, the ordinance makes it illegal for parents and owners and operators of any "establishment" to permit any child not exempted from the curfew to remain in public places during the restricted hours. §§ 15-12, 15-13. "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). Finally, the ordinance prescribes the penalties for children, parents, and owners and operators of establishments, which In the years following the enactment of the curfew ordinance, it was rarely enforced. During the summer and fall of 1990, however, the Mayor of Frederick, Paul P. Gordon, received complaints regarding the noise level and harassment of passersby in a three-block area of North Market Street in downtown Frederick. Complaints centered on one North Market Street restaurant in particular, the Rainbow Hunan Restaurant ("the Rainbow"). A Chinese restaurant by day, the Rainbow was rented to a promotor who, on weekend nights, presented musical/dance events there that were attended primarily by African-American youth. According to Mayor Gordon, "Besides individual complaints received from citizens, on at least three occasions a group of residents came to City Hall to complain to the City about noise and loitering problems in the Market Street area, particularly involving the Rainbow Hunan." In addition, "great concern was shown by citizens as to why the Curfew Ordinance was not more aggressively enforced as a measure to control the noise and loitering problems." Moreover, "other restaurant owners in the Market Street area were also complaining about these problems and the Rainbow Hunan was mentioned specifically in several complaints," according to the Mayor.

                include, inter alia, taking a child into custody, immediate notification of the parents of such custody, and, after the second offense within 12 months, referral of the child to the department of juvenile services.  §  15-14(a).   Furthermore, any violation by a parent or owner or operator of establishments who has been advised of two prior violations by the same child within a 12-month period constitutes a misdemeanor punishable by a "fine not to exceed one hundred dollars ($100.00)."  §  15-14(b) and (c). 1
                

On October 4, 1990, Mayor Gordon called a meeting of owners of restaurants in the North Market Street area, including the owners of the Rainbow. Three "measures of Enforcement of the curfew ordinance began at 11:59 p.m. on October 20. At least three checkpoints were planned, ² one of which was the strip of restaurants on North Market Street that included the Rainbow. Police officers were instructed to "make a reasonable assessment of age" before detaining a young person and thus satisfy themselves that "a reasonable basis existed to conclude there was a curfew violation prior to taking any action." At about 12:30 a.m. on October 21, several police officers entered the Rainbow, "explained to the owners of the restaurant [their] purposes; and proceed[ed] to check the age of those patrons who appeared to be minors." Approximately 28 minors "were detained and led out to a bus waiting outside that had been designated to age verification purposes." According to the Frederick City Chief of Police, Richard J. Ashton, "this was done in an orderly and peaceful way."

                controlling the noise and loitering problems" on North Market Street were discussed.   These "measures" were:  "the restaurant owners['] responsibility to control the noise level on the street;  their responsibility[611 A.2d 602]  to control the restaurants' entrance from becoming a fire hazard;  and their responsibility to comply with the laws of Frederick City, including the Curfew Ordinance."   On October 18, 1990, another meeting of restaurant owners was held to discuss strategies for managing the evening crowds on North Market Street.   On Friday, October 19, 1990, Mayor Gordon announced at a candidates' forum that Frederick City police would soon begin enforcing the juvenile curfew ordinance.   That announcement was reported in the lead article on the front page of the Frederick News-Post on the morning of October 20, 1990
                

Among those minors escorted out of the Rainbow was Tyeicka Bowens, then 16 years-old, who had been dancing inside. A police officer led Bowens to the bus outside the Vanessa Brown was also picked up for violation of the curfew ordinance that night. Brown, who was then 19 years old and six months pregnant, had spent most of the evening at home with her friend Sherry Temple. At around 11:30 p.m., Brown and Temple "decided to ride around downtown"; when they arrived downtown, they decided to go to the Rainbow. Because all of the parking spaces on North Market Street were taken, Brown and Temple parked on another nearby street, and "once out of the car ... began walking to the club." As they arrived at the entrance of Rainbow, Officer Steve Scalf of the Frederick police department approached them and requested identification. Scalf was among those police officers charged that night with the task of enforcing the curfew. His job during the earliest hours of October 21 "was to stand outside the Rainbow Hunan Restaurant and Lounge ... and look for curfew violators passing on the street." At Officer Scalf's request, Temple provided him with her identification documenting that she was over 18 years old. Brown, however, had left her identification at home. Since Brown did not have identification with her, Officer Scalf instructed her to get on the waiting bus and remain there "until her age could be verified." Brown protested and attempted to get away from Officer Scalf's hold on her arm. Officer Scalf then led her to the bus with his hand at the back of her neck. Once in the bus, Brown's picture was taken and she was handcuffed. From inside the bus, she told Temple to go and obtain identification from her mother. Temple and Brown's mother returned with the identification; after confirming that Brown was over the age restricted by the On the evening in question, three other restaurants in the North Market Street area were checked for curfew violators; the record does not reflect whether any violators were found at these other restaurants. Nor is there any indication in the record as to the race of any of the other alleged violators picked up in and around the Rainbow. The curfew had not been enforced for at least a year prior to October 21, 1990; by the end of 1990, however, according to an affidavit filed by Chief Ashton, "besides the incident complained of in this action, the enforcement of the [curfew ordinance] resulted in approximately 34 arrests, 19 of which were black minors and 15 of which were white minors."

                Rainbow, where her picture was taken and she was restrained with plastic handcuffs.   An officer removed the handcuffs after Bowens complained that they were hurting her;  she was then transported along with the other youths on the bus to the police station, "where parents or guardians of the detained minors were called to pick them up."   Neither Bowens nor any other minor was formally arrested or placed in cells
                curfew, the police released her from the bus.   Approximately 15 to 20 minutes elapsed between the time Officer Scalf first approached her and Brown's release.   After Brown got off the bus, she and her mother complained to [611 A.2d 603] Police Chief Ashton about Scalf's treatment of Brown, and then went to the police station where they repeated their complaint to another police officer.   Brown did not, however, seek medical treatment for bruises or file a formal charge or complaint against Scalf
                

On November 23, 1990, Bowens (by her mother as her next friend) and Brown together filed a multi-count complaint in the Circuit Court for Frederick County against Ashton, Scalf, and the City of Frederick. The plaintiffs alleged the common law torts of negligence, assault and battery, false imprisonment, invasion of privacy, and intentional infliction of emotional distress. They also charged that they had been improperly arrested during the early...