Hodgkins ex rel. Hodgkins v. Peterson

• Decision Date: 22 January 2004
• Docket Number: No. 01-4115.,01-4115.
• Citation: 355 F.3d 1048
• Parties: Nancy HODGKINS, Colin Hodgkins, and Caroline Hodgkins, by their next friend and natural parent Nancy HODGKINS, on their own behalf and on behalf of those similarly situated, Plaintiffs-Appellants, v. Bart PETERSON, Mayor, in his official capacity as mayor of the City of Indianapolis, Indiana, Jack L. Cottey, Sheriff, in his official capacity as Marion County Sheriff, and Scott Newman, in his official capacity as Marion County Prosecutor, Defendants-Appellees, and State of Indiana, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

355 F.3d 1048

Nancy HODGKINS, Colin Hodgkins, and Caroline Hodgkins, by their next friend and natural parent Nancy HODGKINS, on their own behalf and on behalf of those similarly situated, Plaintiffs-Appellants, v.Bart PETERSON, Mayor, in his official capacity as mayor of the City of Indianapolis, Indiana, Jack L. Cottey, Sheriff, in his official capacity as MarionCounty Sheriff, and Scott Newman, in his official capacity as Marion County Prosecutor, Defendants-Appellees, and State of Indiana, Intervenor-Appellee.

No. 01-4115.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 2002.

Decided January 22, 2004.

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Kenneth J. Falk(argued), Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiffs-Appellants.

Peggy D. Dallmann(argued), Office of the Corporation Counsel, Thomas M. Fisher(argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.

Before HARLINGTON WOOD, Jr., COFFEY, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

A parent and her minor children challenged Indiana's curfew law (Ind.Code §§ 31-37-3-2and31-37-3-3.5("curfew law")) claiming that the law violates the First Amendment rights of minors and impinges on the substantive due process rights of parents to raise and control the upbringing of their children.The district court denied the plaintiffs' motion for a preliminary injunction, holding that the curfew law — which contains an affirmative defense for minors arrested while participating in, going to, or returning from an activity protected under the First Amendment to the United States Constitution — did not threaten to curtail the First Amendment rights of juveniles and did not impede the due process rights of parents to direct their children's upbringing without undue interference from the government.Even with the affirmative defense, however, the new curfew leaves minors on their way to or from protected First Amendment activity vulnerable to arrest and thus creates a chill that unconstitutionally imposes on their First Amendment rights.Consequently, we reverse the decision of the district court.

I.

Shortly after 11:00 pm on August 26, 1999, Colin Hodgkins and his three friends left a Steak'n Shake restaurant in Marion County, Indiana where they had stopped to eat after attending a school soccer game.¹As they left the restaurant, police arrested and handcuffed them for violating Indiana's curfew regulation.The police took Colin and his friends to a curfew sweep processing site where he was given a breathalyser test and escorted to a bathroom where he was required to submit a urine sample to be tested for drugs.Later, both tests were determined to be negative.After the tests, a community volunteer interviewed Colin, asking him various personal questions about his friends and family including whether his family attended church.Two and a half hours later, at 1:30 a.m., a member of the Marion County Sheriff's Department went to the Hodgkins residence to inform Nancy Hodgkins that her son had been arrested and had to be picked up at the local high school.When she arrived to pick up her son, a community volunteer interviewed her and asked her personal questions about the Hodgkins family.

Colin's arrest spurred a series of legal challenges to the constitutionality of the statute, followed by subsequent revisions to the curfew law and culminating in the statute challenged in the instant case.At the time of Colin's arrest, the Indiana statute set a curfew of 11 p.m. on weekday nights and 1 a.m. on weekend nights as described below:

Children fifteen through seventeen years of age

Sec. 2.It is a curfew violation for a child fifteen (15), sixteen (16), or seventeen (17) years of age to be in a public place:

(1) between 1 a.m. and 5 a.m. on Saturday or Sunday;

(2) after 11 p.m. on Sunday, Monday, Tuesday, Wednesday, or Thursday; or

(3) before 5 a.m. on Monday, Tuesday, Wednesday, Thursday, or Friday.

Ind.Code 31-37-3-2.A second statute made it unlawful for any child under the age of fifteen to be in any public place after 11 p.m. or before 5 a.m. on any day.Ind.Code 31-37-3-3.Violations of the latter provision constituted a delinquent act (Ind.Code 31-37-2-5) and could subject a parent to criminal liability.Ind.Code 31-37-2-5(making it a crime to knowingly or intentionally encourage, aid, induce, or cause a person under eighteen years of age to commit an act of delinquency).A third statute in force at the time of Colin's arrest exempted from application of the curfew statute any child who was:

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

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

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

(A) lawful employment;

(B) a school sanctioned activity; or

(C) a religious event.

Ind.Code 31-37-3-1(repealed).Together, these statutes formed what we will call Indiana's prior curfew law.

Pursuant to a challenge by Colin, his mother, and a certified class of minors similarly situated, the district court determined that the statutes were constitutionally flawed as they lacked any exceptions for First Amendment activity.Hodgkins v. Goldsmith,No. IP99-1528-C-T/G, 2000 WL 892964, at *18(S.D.Ind.July 3, 2000)("Hodgkins I").Following this decision, the defendants appealed.While the appeal was pending, the Indiana General Assembly passed the current version of the curfew law, effective May 1, 2001, which is the subject of the instant appeal.²

Pursuant to Judge Tinder's holding that the prior curfew law was unconstitutional, the statelegislature amended the statute to its current form.In doing so, the Indiana General Assembly repealed Ind Code 31-37-3-1(the statute listing exceptions to the curfew rule), kept the remainder of the statute intact, and enacted a new Ind.Code 31-37-3-3.5 which, rather than creating an exception for First Amendment activity, created an affirmative defense for those engaged in protected expressive activity:

31-37-3-3.5 Defenses

Sec. 3.5.

* * * * * *

(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 nonprofit 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 Indiana to another location outside Indiana.

The plaintiffs, unconvinced that the new affirmative defense for First Amendment activity cured the constitutional deficiency found by the district court in Hodgkins I, sought to preliminarily enjoin the enforcement of the new curfew law.Specifically, the plaintiffs asserted that the defense offered no real protection for minor plaintiffs involved in First Amendment activity who still might be vulnerable to arrest before they could assert a defense.The plaintiffs further maintained that the new curfew law violated the Fourteenth Amendment by unlawfully denying parents the autonomy to allow their children to be in public places unaccompanied during curfew hours.

Named plaintiffNancy Hodgkins is a resident of Indianapolis, Indiana, and is the mother of named plaintiffs Colin and Caroline Hodgkins.Ms. Hodgkins would like to allow her children to participate in the activities protected by the curfew law's First Amendment exception, however, she is concerned that if they do so, they will be subject to arrest.Ms. Hodgkins recognizes that if one of her children is arrested while participating in a First Amendment activity she and the child could later use that activity as a defense to the charges.She is nevertheless concerned about the potential expense and time involved in launching such a defense, and, we surmise, she is wary of again placing herself in a position where she will be summoned by the police in the middle of the night to come to a curfew processing center or detention center and of placing her children in a position where they will be subject to arrest, a breathalyser test, urine test, and an intrusive interview.Ms. Hodgkins states that she will certainly consider the risk of arrest when deciding whether to allow her children to participate in First Amendment activities after curfew.Consequently, she asserts that the current statute chills her children's ability to engage in these types of activities.

Furthermore, Ms. Hodgkins wishes to assert her rights as a parent to measure out more privileges and responsibilities to her children as they mature and grow more capable of acting responsibly with additional freedom.She believes that it is part of a parent's job to prepare a child for adulthood by doling out greater freedoms, including the freedom to remain out past curfew without being accompanied by an adult.She seeks a preliminary injunction against defendantsBart 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, barring them from enforcing the new juvenile curfew law.The State of Indiana has intervened as a matter of right...