Schleifer Ex Rel. Schleifer v. City of Charlottesville

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DANIEL SCHLEIFER, a minor by Barry
Schleifer, his father; WILLIAM
MCCUTCHEON, a minor by M.
Parthenia Monagan, his mother;
LISA BRIGGS, a minor by Anne
Briggs, her mother; NORA LALLY-
GRAVES, a minor by Mary Ann
Lally-Graves, her mother; JILL
LANDERS JACQUITH, a minor by
No. 97-1723
Harry James Landers, her father;
ANNE BRIGGS; HARRY JAMES
LANDERS; WALDO DAVID LANDERS
JAQUITH,
Plaintiffs-Appellants,
v.
CITY OF CHARLOTTESVILLE,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-97-21-C)
Argued: May 5, 1998
Decided: October 20, 1998
Before WILKINSON, Chief Judge, and ERVIN and
MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Judge Ervin joined. Judge Michael wrote
a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Mary Catherine Bauer, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for
Appellants. Lisa Robertson Kelley, OFFICE OF THE CITY ATTOR-
NEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Deborah
C. Wyatt, WYATT & CARTER, Charlottesville, Virginia, for Appel-
lants. W. Clyde Gouldman, II, OFFICE OF THE CITY ATTORNEY,
Charlottesville, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
This appeal involves a challenge to the constitutionality of a juve-
nile nocturnal curfew ordinance enacted by the City of Charlottes-
ville. The district court held that the ordinance did not violate the
constitutional rights of minors, their parents, or other affected parties
and declined to enjoin its enforcement. We agree that the ordinance
is constitutional and affirm the judgment of the district court.
I.
On December 16, 1996, the Charlottesville City Council, after sev-
eral months of study and deliberation, amended Section 17-7 of the
City Code to enact a new juvenile nocturnal curfew ordinance. The
City Council designed the curfew ordinance to:
(i) promote the general welfare and protect the general pub-
lic through the reduction of juvenile violence and crime
within the City;
2
(ii) promote the safety and well-being of the City's youn-
gest citizens, persons under the age of seventeen (17),
whose inexperience renders them particularly vulnerable to
becoming participants in unlawful activities, particularly
unlawful drug activities, and to being victimized by older
perpetrators of crime; and
(iii) foster and strengthen parental responsibility for chil-
dren.
Charlottesville, Va., Code § 17-7, Intro.
Effective March 1, 1997, the ordinance generally prohibits minors,
defined as unemancipated persons under seventeen, from remaining
in any public place, motor vehicle, or establishment within city limits
during curfew hours. The curfew takes effect at 12:01 a.m. on Mon-
day through Friday, at 1:00 a.m. on Saturday and Sunday, and lifts at
5:00 a.m. each morning.
The ordinance does not restrict minors' activities that fall under
one of its eight enumerated exceptions. Minors may participate in any
activity during curfew hours if they are accompanied by a parent; they
may run errands at a parent's direction provided that they possess a
signed note. The ordinance allows minors to undertake employment,
or attend supervised activities sponsored by school, civic, religious,
or other public organizations. The ordinance exempts minors who are
engaged in interstate travel, are on the sidewalk abutting their parents'
residence, or are involved in an emergency. Finally, the ordinance
does not affect minors who are "exercising First Amendment rights
protected by the United States Constitution, such as the free exercise
of religion, freedom of speech and the right of assembly." Id. § 17-
7(b)(8).
The ordinance sets forth a scheme of warnings and penalties for
minors who violate it. For a first violation, a minor receives a verbal
warning, followed by a written warning to the minor and the minor's
parents. For subsequent violations, the minor is charged with a Class
4 misdemeanor. The ordinance also makes it unlawful for certain
other individuals, including parents, knowingly to encourage a minor
3
to violate the ordinance. The full text of the ordinance is included as
an appendix to the opinion.
Plaintiffs are five minors under age seventeen who are subject to
the ordinance, one eighteen-year-old, and two parents of minor chil-
dren. The minors allege that, with their parents' permission, they
occasionally wish to engage in lawful activities which the curfew will
not permit. These activities include attending late movies; getting a
"bite to eat"; playing in a band; socializing with older siblings; and
attending concerts in Richmond, which would bring them back
through Charlottesville during curfew hours. The eighteen-year-old
plaintiff alleges that he has been deprived of opportunities to associate
with his younger friends by the ordinance. The parent plaintiffs allege
that the ordinance interferes with their decisions on which activities,
at what times, are appropriate for their children.
Plaintiffs brought this action for declaratory and injunctive relief,
alleging that the ordinance violates their rights under the First, Fourth,
Fifth and Fourteenth Amendments. At trial, plaintiffs dismissed their
Fourth Amendment claims. Following trial, by order dated May 20,
1997, the district court rejected plaintiffs' remaining claims and
denied their motion for a permanent injunction. Plaintiffs now appeal.
II.
Initially we must consider the level of scrutiny appropriate to this
case. Plaintiffs contend that the ordinance infringes minors' constitu-
tional liberties and therefore should be subject to strict scrutiny. It is
true that "[a] child, merely on account of his minority, is not beyond
the protection of the Constitution." Bellotti v. Baird, 443 U.S. 622,
633 (1979) (plurality opinion) (Bellotti II). Minors enjoy some rights
under the First and Fourteenth Amendments before they attain adult-
hood. See, e.g., Planned Parenthood of Cent. Missouri v. Danforth,
428 U.S. 52, 74 (1976); Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503, 506 (1969). At the same time, the Supreme Court
has made abundantly clear that children's rights are not coextensive
with those of adults. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 682 (1986); Bellotti II, 443 U.S. at 634; Ginsberg v.
New York, 390 U.S. 629, 638 (1968); Prince v. Massachusetts, 321
U.S. 158, 168 (1944). "Traditionally at common law, and still today,
4
unemancipated minors lack some of the most fundamental rights of
self-determination -- including even the right of liberty in its narrow
sense, i.e., the right to come and go at will." Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646, 654 (1995).
In recognition of these customary limitations, "[t]he state's author-
ity over children's activities is broader than over like actions of
adults." Prince, 321 U.S. at 168. State laws do not permit children to
drive a car before they reach a certain age. E.g., Va. Code Ann.
§ 46.2-334. Compulsory attendance laws require children to attend
school. E.g., id. § 22.1-254; see also Prince, 321 U.S. at 166. Labor
laws limit the opportunities of children to engage in gainful employ-
ment. E.g., Va. Code Ann. § 40.1-78; see also Prince, 321 U.S. at
166. These types of laws reflect the state's "general interest in youth's
well being." Id.; see also City of Dallas v. Stanglin, 490 U.S. 19, 27
& n.4 (1989); Bykofsky v. Borough of Middletown , 401 F. Supp. 1242,
1256-57 (M.D. Pa. 1975), aff'd mem., 535 F.2d 1245 (3d Cir. 1976).
In light of the case law, two things seem clear. First, children do
possess at least qualified rights, so an ordinance which restricts their
liberty to the extent that this one does should be subject to more than
rational basis review. Second, because children do not possess the
same rights as adults, the ordinance should be subject to less than the
strictest level of scrutiny. See Carey v. Population Servs. Int'l, 431
U.S. 678, 693 n.15 (1977) (plurality opinion) (when minors are
involved the level of scrutiny "is apparently less rigorous than the
``compelling state interest' test applied to restrictions on the privacy
rights of adults"); Danforth, 428 U.S. at 75. We thus believe interme-
diate scrutiny to be the most appropriate level of review and must
determine whether the ordinance is "substantially related" to "impor-
tant" governmental interests. See United States v. Virginia, 518 U.S.
515, 533 (1996) (quoting Mississippi University for Women v. Hogan,
458 U.S. 718, 724 (1982); Wengler v. Druggists Mutual Ins. Co., 446
U.S. 142, 150 (1980)). We also conclude, however, that the ordinance
survives constitutional attack under either a substantial or a compel-
ling state interest standard. The narrow means chosen by the City in
the ordinance serve strong and indeed compelling public needs.
5
III.
A.
The text of the Charlottesville curfew ordinance identifies three
legislative purposes: (1) to reduce juvenile violence and crime within
the city; (2) to protect juveniles themselves from being swept up in
unlawful drug activities and from becoming prey to older perpetrators
of crime; and (3) to strengthen parental responsibility for children.
These enumerated purposes represent important and compelling gov-
ernmental interests.
In Schall v. Martin the Supreme Court recognized that "[t]he ``legit-
imate and compelling state interest' in protecting the community from
crime cannot be doubted." 467 U.S. 253, 264 (1984) (quoting DeVeau
v. Braisted, 363 U.S. 144, 155 (1960)). Indeed it constitutes "a
weighty social objective." Brown v. Texas, 443 U.S. 47, 52 (1979). If
government cannot ensure the safety of its citizens, it has failed them
in the most fundamental sense. Schall further confirms that "this inter-
est persists undiluted in the juvenile context," as the social costs of
crime are high no matter what the age of the perpetrator. 467 U.S. at
264-65.
The City contends that its curfew ordinance was passed to combat
the marked growth in the rate of juvenile crime both nationwide and
within Virginia. During the preliminary injunction hearing Dr. Wil-
liam Ruefle, a criminologist expert in juvenile curfews, testified that
these state and national growth trends were reflected in Charlottes-
ville. In fact, the City produced evidence of a twenty-five percent
increase in the delinquency caseload of Charlottesville's Juvenile and
Domestic Relations Court between 1991 and 1996. Given the pro-
jected increase in the nation's juvenile population between 1995 and
2005, the problem of juvenile crime was unlikely to abate.
In addition, the City has documented two troubling features of the
juvenile crime phenomenon. First, the City's evidence on nationwide
trends indicated a high rate of recidivism among juveniles and a cor-
relation between juvenile delinquency and adult criminal activity.
Thus reducing juvenile crime was a pressing first step in reducing the
overall impact of crime on the community. Second, Charlottesville's
6
City Council was concerned about the marked increase in the violence
associated with juvenile crime. As the City's expert Dr. Ruefle stated
in an affidavit submitted to the district court,"[j]uveniles in Virginia
now commit serious property crimes at twice the rate of those 18
years of age and older, and since 1990, they also commit serious vio-
lent crimes at a higher rate than adults." In light of this evidence,
Charlottesville's first stated purpose is undeniably compelling.
Likewise, the City's strong interest in fostering the welfare of chil-
dren and protecting the youngest members of society from harm is
well-established. See, e.g., Santosky v. Kramer, 455 U.S. 745, 766
(1982); Ginsberg, 390 U.S. at 640; Prince, 321 U.S. at 166-67. Courts
have recognized "the peculiar vulnerability of children," Bellotti II,
443 U.S. at 634, and the Supreme Court long ago observed that
"streets afford dangers for [children] not affecting adults." Prince, 321
U.S. at 169. Those dangers have not disappeared; they simply have
assumed a different and more insidious form today. Each unsuspect-
ing child risks becoming another victim of the assaults, violent
crimes, and drug wars that plague America's cities. Given the realities
of urban life, it is not surprising that courts have acknowledged the
special vulnerability of children to the dangers of the streets. Nunez
v. San Diego, 114 F.3d 935, 947 (9th Cir. 1997); In Re Appeal in
Maricopa County, Juvenile Action No. JT9065297, 887 P.2d 599, 606
(Ariz. Ct. App. 1994) (Maricopa County); In Re J.M., 768 P.2d 219,
223 (Colo. 1989) (en banc); see also Bykofsky , 401 F. Supp. at 1257.
Charlottesville, unfortunately, has not escaped these troubling reali-
ties. Two experienced City police officers confirmed to the district
court that the children they observe on the streets after midnight are
at special risk of harm.
Charlottesville's third purpose -- strengthening parental responsi-
bility for children -- is also a significant interest. The City shares
with parents and guardians a responsibility to protect children. Prince,
321 U.S. at 165-66; Pierce v. Society of Sisters , 268 U.S. 510, 535
(1925). State authority complements parental supervision, and "the
guiding role of parents in the upbringing of their children justifies
limitations on the freedoms of minors." Bellotti II, 443 U.S. at 637.
The Supreme Court has acknowledged "the special interest of the
State" in encouraging minors to seek parental advice in making
important decisions. Id. at 639. And the Court has confirmed that the
7
state is appropriately concerned with the integrity of the family unit.
Trimble v. Gordon, 430 U.S. 762, 769 (1977). Therefore, like the
City's two preceding interests in reducing the incidence of juvenile
crime and juvenile victimization, the City's third aim constitutes an
important governmental purpose.
B.
Conceding for the sake of argument that the curfew's stated ends
are sufficiently compelling, plaintiffs train their attack on the means
by which the ordinance seeks to achieve its goals.
We agree with plaintiffs that the curfew must be shown to be a
meaningful step towards solving a real, not fanciful problem. As the
Supreme Court has said in the First Amendment context, the govern-
ment "must do more than simply ``posit the existence of the disease
sought to be cured.' It must demonstrate that the recited harms are
real, not merely conjectural, and that the regulation will in fact allevi-
ate these harms in a direct and material way." Turner Broad. Sys., Inc.
v. FCC, 512 U.S. 622, 664 (1994) (citations omitted). This standard,
however, has never required scientific or statistical "proof" of the wis-
dom of the legislature's chosen course. Cf. Ginsberg, 390 U.S. at 642-
43 ("We do not demand of legislatures ``scientifically certain criteria
of legislation.'") (quoting Noble State Bank v. Haskell, 219 U.S. 104,
110 (1911)). The Supreme Court has recognized that"[i]t is unrealis-
tic to expect either members of the judiciary or state officials to be
well versed in the rigors of experimental or statistical technique. But
this merely illustrates that proving broad sociological propositions by
statistics is a dubious business." Craig v. Boren, 429 U.S. 190, 204
(1976). This uncertain nature of remedial legislation is no reason for
courts to fashion their own cures or to scuttle those the legislature has
provided. In fact, "[f]ederal courts have always been reluctant to
question the potential effectiveness of legislative remedies designed
to address societal problems." Qutb v. Strauss, 11 F.3d 488, 493 n.7
(5th Cir. 1993).
Charlottesville was constitutionally justified in believing that its
curfew would materially assist its first stated interest -- that of reduc-
ing juvenile violence and crime. The City Council acted on the basis
of information from many sources, including records from Charlottes-
8
ville's police department, a survey of public opinion, news reports,
data from the United States Department of Justice, national crime
reports, and police reports from other localities. On the basis of such
evidence, elected bodies are entitled to conclude that keeping uns-
upervised juveniles off the streets late at night will make for a safer
community. The same streets may have a more volatile and less
wholesome character at night than during the day. Alone on the
streets at night children face a series of dangerous and potentially life-
shaping decisions. Drug dealers may lure them to use narcotics or aid
in their sale. Gangs may pressure them into membership or participa-
tion in violence. "[D]uring the formative years of childhood and ado-
lescence, minors often lack the experience, perspective, and judgment
to recognize and avoid choices that could be detrimental to them."
Bellotti II, 443 U.S. at 635; see also Nunez , 114 F.3d at 947;
Maricopa County, 887 P.2d at 606-07; In Re J.M., 768 P.2d at 223.
Those who succumb to these criminal influences at an early age may
persist in their criminal conduct as adults. Whether we as judges sub-
scribe to these theories is beside the point. Those elected officials
with their finger on the pulse of their home community clearly did.
In attempting to reduce through its curfew the opportunities for chil-
dren to come into contact with criminal influences, the City was
directly advancing its first objective of reducing juvenile violence and
crime.
Plaintiffs contend that the exclusion of seventeen-year-olds from
the curfew is a fatal flaw in the ordinance. They argue that this group
is responsible for one-third of all crimes committed by juveniles
nationwide and that excluding seventeen-year-olds from the curfew
thus renders the ordinance impermissibly underinclusive. However,
the City's evidence documents a serious problem of crime among
younger juveniles. In Charlottesville in 1995 eighty percent of juve-
nile arrests for the most serious crimes were of children aged ten to
sixteen, and in 1996 eighty-five percent of such crimes were commit-
ted by this group. Furthermore, the City's decision to exclude
seventeen-year-olds from coverage under the curfew is a legislative
judgment that we are loath to second-guess. "[I]t is not the function
of a court ``to hypothesize independently on the desirability or feasi-
bility of any possible alternative[s]' to the statutory scheme.. .. .. .
``These matters of practical judgment and empirical calculation are for
[the State].'" Lalli v. Lalli, 439 U.S. 259, 274 (1978) (quoting
9
Matthews v. Lucas, 427 U.S. 495, 515 (1976)) (alterations in origi-
nal). In exercising its legislative judgment, the City was forced to bal-
ance the law enforcement benefit of subjecting seventeen-year-olds to
the curfew against the greater law enforcement burden of doing so.
Weighing benefits and burdens is what legislatures are about.
Plaintiffs also dispute the effectiveness of the curfew in reducing
juvenile crime. They say that the real problem of juvenile crime is not
at night, but in the after school hours. Plaintiffs make much of a
report entitled Juvenile Offenders and Victims: 1996 Update on
Violence, Office of Juvenile Justice and Delinquency Prevention, U.S.
Dep't of Justice 27 (1996), which asserts that only seventeen percent
of violent juvenile crime occurs during typical curfew hours, while
twenty-two percent happens between 2:00 p.m. and 6:00 p.m. on
school days. The City responds that the lower rate of late-night crime
may reflect the fact that several of the South Carolina cities in the
study actually had late-night curfews in effect. And with respect to
conditions in Charlottesville before the curfew, City police officers
and Charlottesville's Commonwealth's Attorney confirmed that the
most serious crimes committed by juveniles occurred during curfew
hours. Further, the City Council considered evidence that juvenile
offenses occurring in Charlottesville between 11:00 p.m. and 6:00
a.m. increased by thirty-eight percent during 1995 and a further ten
percent during 1996. Thus the City had reason to believe that, in both
volume and severity, nighttime juvenile crime was a serious, growing
problem in Charlottesville.
Charlottesville's City Council concluded that a nighttime curfew
might help curb this rising trend of juvenile crime. In making this
decision, the City relied on the experience of cities like Lexington,
Kentucky, where eight months of enforcing a nighttime juvenile cur-
few effected an almost ten percent decrease in juvenile arrests for the
serious crimes of homicide, assault, robbery, rape, burglary, larceny,
auto theft and arson. And the district court heard testimony that a cur-
few has the greatest chance of reducing juvenile crime in a smaller
city like Charlottesville, where juvenile crime, though a serious prob-
lem, has not yet become totally uncontrollable. Fundamentally, how-
ever, this dispute about the desirability or ultimate efficacy of a
curfew is a political debate, not a judicial one. If local communities
conclude that curfews are ineffective in reducing crime, too onerous
10
to enforce, or too intrusive on the liberties of minors, then they are
free to discontinue them. Yet local legislative bodies are entitled to
draw their conclusions in light of experience with a curfew's opera-
tion, and not have their efforts at reducing juvenile violence shut
down by a court before they even have a chance to make a difference.
Plaintiffs also dispute that the curfew will contribute much, if any-
thing, to protecting juveniles from crime, the City's second objective.
They deny that the streets are a particularly dangerous place for chil-
dren at night, contending that the majority of crimes committed
against children are committed by family members or acquaintances
rather than by strangers on the street. The fact that children may be
at risk at home or during the day means only that the curfew will not,
unfortunately, protect juveniles from all crime. It does nothing to
undermine the City's evidence that children remain at risk of crime
in the street -- in fact, the City points out that in 1991 thirty-three
percent of the violent crimes reported by juvenile victims nationwide
occurred on the street. Juvenile Offenders & Victims: A National
Report, Office of Juvenile Justice and Delinquency Prevention, U.S.
Dep't of Justice 22 (1995). The Constitution certainly does not put
legislatures to the choice of solving the entirety of a social problem
or no part of it at all. Plyler v. Doe, 457 U.S. 202, 216 (1982).
Further, the evidence presented by the City identified several spe-
cial dangers of the nighttime hours: a vigorous street-level drug trade
that flourishes during the late evening and early morning hours and
that routinely uses children to facilitate drug transactions, thereby
exposing them to a high degree of danger; the difficulties of appre-
hending perpetrators of crime at night, as criminal activity is less visi-
ble and less subject to monitoring by concerned neighbors and
passers-by; and the increased degree of violence and seriousness of
the crimes that are committed at night. The record documents that in
Charlottesville in 1996 aggravated assaults were almost one and one-
half times as likely to occur during curfew hours as non-curfew hours,
robberies more than twice as likely to occur at these times, forcible
rapes more than three times as likely during curfew hours, and inci-
dents of drunk driving more than five times more likely to occur dur-
ing curfew hours, trends that continued into the first months of 1997.
By keeping children off the streets a few hours each night, the curfew
11
reduces the exposure of children to these well-known, and well-
documented harms.
Finally, plaintiffs dispute the City's claim that the curfew will sup-
port the parental role in child-rearing, its third stated goal. They focus
exclusively on the testimony of the parent plaintiffs, who clearly do
not appreciate the curfew and do not welcome it as an enhancement
of their authority. The City was entitled to believe, however, that a
nocturnal curfew would promote parental involvement in a child's
upbringing. A curfew aids the efforts of parents who desire to protect
their children from the perils of the street but are unable to control the
nocturnal behavior of those children. And a curfew encourages par-
ents who ignore their children's nighttime activities to take a more
active role in their children's lives. See Bykofsky, 401 F. Supp. at
1255; In Re J.M., 768 P.2d at 223. Finally, the curfew assists the
efforts of parents who prefer their children to spend time on their
studies rather than on the streets. City law enforcement officers
related anecdotal evidence that some parents actively welcome the
support of the authorities in establishing baselines for their children
and in enforcing reasonable limits on the freedom of their children to
wander the streets in the middle of the night. And the City Council
acted on the basis of surveys and testimony at public hearings reflect-
ing widespread approval of the curfew and the support it offers to par-
ents' efforts to discipline their children.
C.
The Charlottesville curfew is not only "substantially related" to its
stated purposes. The limited scope of the curfew and its numerous
exceptions would satisfy even the strict scrutiny requirement of nar-
row tailoring. See Bernal v. Fainter, 467 U.S. 216, 219 (1984) (nar-
row tailoring requires that the government use the least restrictive
means to advance its goals). Plaintiffs urge, however, that we follow
the lead of the Ninth Circuit, which held that San Diego's curfew
ordinance failed strict scrutiny review because the exceptions to the
ordinance were not sufficiently detailed and comprehensive to make
the curfew the least restrictive means of serving San Diego's compel-
ling ends. Nunez, 114 F.3d at 948-49.
The San Diego curfew applied to all minors under the age of eigh-
teen, began at 10:00 p.m., and extended until "daylight immediately
12
following." Id. at 938. It contained four exceptions: (1) when a minor
is accompanied by a parent or other qualified adult; (2) when a minor
is on an emergency errand for his parent; (3) when a minor is return-
ing from a school-sponsored activity; and (4) when a minor is
engaged in employment. See San Diego, Cal., Municipal Code Art.
8, § 58.01, quoted in Nunez, 114 F.3d at 938-39.
By contrast, Charlottesville's curfew applies only to minors less
than seventeen years of age, does not begin until midnight on week-
days and 1:00 a.m. on weekends, lifts at 5:00 a.m. each morning, and
contains no fewer than eight detailed exceptions. Under Charlottes-
ville's curfew, minors are allowed, inter alia , to remain on the side-
walk directly abutting their residences; to attend supervised activities
sponsored by school, religious, public, civic or other similar organiza-
tions; to run errands for their parents; to undertake interstate travel;
and to engage freely in any activity protected by the First Amend-
ment.
The Charlottesville ordinance carefully mirrors the Dallas curfew
ordinance that the Fifth Circuit found to satisfy strict scrutiny in Qutb,
11 F.3d at 490. Like the Charlottesville ordinance, the Dallas curfew
covered fewer hours than San Diego's and affected minors under the
age of seventeen, not eighteen. In addition to exceptions for employ-
ment and emergencies and when a minor is in the presence of a parent
or guardian, the curfew at issue in Qutb included a broad exception
for sponsored activities, a First Amendment exception, an exception
for being outside on the sidewalk adjacent to the minor's home, and
an exception for interstate travel. Id. Charlottesville's curfew is in fact
even narrower in scope than the Dallas ordinance, as it affects fewer
hours each night -- the Dallas curfew extended from 11:00 p.m. until
6:00 a.m. on weeknights and from 12:00 midnight to 6:00 a.m. on
weekends, one hour more each day than the Charlottesville ordinance.
This curfew, with its narrow scope and comprehensive list of excep-
tions, represents the least restrictive means to advance Charlottes-
ville's compelling interests. Thus, it would survive even strict
scrutiny if that were the appropriate standard of review.
IV.
We next address plaintiffs' claims that the Charlottesville ordi-
nance violates the constitutional rights of parents. Plaintiffs assert that
13
parents have a constitutionally protected right to direct their chil-
dren's upbringing without undue government interference. They urge
that this right includes decisions whether to allow their children to
engage in activities after the curfew takes effect. The ordinance inter-
feres with this right, they conclude, by prohibiting children's activi-
ties that have the parents' full approval but do not fall under one of
the ordinance's eight exceptions.
Not every state restriction of a child's freedom derivatively
abridges the fundamental rights of parents. The Supreme Court has
rejected the view that parents possess an unqualified right to raise
children that trumps any government regulation of their children's
conduct. In Prince, the Court recognized"that the state has a wide
range of power for limiting parental freedom and authority in things
affecting the child's welfare." 321 U.S. at 167; see also Jehovah's
Witnesses in Wash. v. King County Hosp. Unit No. 1 (Harbor-View),
390 U.S. 598 (1968) (per curiam), aff'g 278 F. Supp. 488 (W.D.
Wash. 1967); Bykofsky, 401 F. Supp. at 1262. Furthermore, were we
to accept plaintiffs' argument, future litigants could simply artfully
plead violations of parental rights to avoid the Supreme Court's deter-
mination that children do not possess all the freedoms of adults. Argu-
ments based on minors' rights to engage in particular conduct would
be routinely recast as arguments based on parents' rights to allow
their children to engage in precisely the same conduct.
We are mindful that the Supreme Court has suggested in other con-
texts that parents may possess a fundamental right against undue,
adverse interference by the state. See Wisconsin v. Yoder, 406 U.S.
205, 231 (1972) (state compulsory high school attendance law inter-
fered with "traditional concepts of parental control over the religious
upbringing and education of their minor children"); Stanley v. Illinois,
405 U.S. 645, 651 (1972) (state presumption that unmarried father
was unfit parent undermined "the interest of a parent in the compan-
ionship, care, custody, and management" of child); Meyer v.
Nebraska, 262 U.S. 390, 400 (1923) (state prohibition against teach-
ing of foreign languages frustrated "the natural duty of the parent to
give his children education suitable to their station in life"). We do
not believe, however, that cases involving a parent's custodial rights
or authority to direct a child's education support plaintiffs' claim. The
Charlottesville ordinance, prohibiting young children from remaining
14
unaccompanied on the streets late at night, simply does not implicate
the kinds of intimate family decisions considered in the above cases.
Finally, several of the exceptions to the Charlottesville curfew do
accommodate the rights of parents. See Qutb, 11 F.3d at 496. These
include the exception for minors accompanied by a parent and the
exception for minors running an errand at the direction of a parent.
In general, the same reasons that lead us to reject the constitutional
challenges of the minor plaintiffs even under strict scrutiny apply to
the claims of the parent plaintiffs. Cf. Bykofsky, 401 F. Supp. at 1264.
The limited curtailment of juvenile liberty in the ordinance violates
neither a minor's nor a parent's rights.
V.
Finally, we consider plaintiffs' claims that various exceptions to
the ordinance are unconstitutionally vague. A law is not void for
vagueness so long as it "(1) establishes ``minimal guidelines to govern
law enforcement,' and (2) gives reasonable notice of the proscribed
conduct." Elliott v. Administrator, Animal and Plant Health Inspec-
tion Serv., 990 F.2d 140, 145 (4th Cir. 1993) (citation omitted). In
statutes imposing criminal penalties, "the standard of certainty is
higher." Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983). Yet clar-
ity even in a criminal code can be a receding mirage. Thus the vague-
ness doctrine cannot "convert into a constitutional dilemma the
practical difficulties in drawing criminal statutes both general enough
to take into account a variety of human conduct and sufficiently spe-
cific to provide fair warning that certain kinds of conduct are prohib-
ited." Colten v. Kentucky, 407 U.S. 104, 110 (1972).
Striking down ordinances (or exceptions to the same) as facially
void for vagueness is a disfavored judicial exercise. Nullification of
a law in the abstract involves a far more aggressive use of judicial
power than striking down a discrete and particularized application of
it. Of course there will be hard cases under any law. And of course
all the particular applications of any general standard will not be
immediately apparent. That is no reason, however, for courts to scrap
altogether the efforts of the legislative branch. It is preferable for
courts to demonstrate restraint by entertaining challenges to applica-
tions of a law as those challenges arise.
15
The Charlottesville ordinance provides an exception for those
minors who are "exercising First Amendment rights protected by the
United States Constitution, such as the free exercise of religion, free-
dom of speech and the right of assembly." Charlottesville, Va., Code
§ 17-7(b)(8). Plaintiffs insist that this exception accords standardless
discretion to law enforcement officers to decide whether or not the
exception applies. According to plaintiffs, it also forces citizens to
learn a complex body of constitutional law in order to comprehend its
scope.
We decline to punish the City for its laudable effort to respect the
First Amendment. See CISPES (Committee in Solidarity with the Peo-
ple of El Salvador) v. FBI, 770 F.2d 468, 474 (5th Cir. 1985). A broad
exception from the curfew for such activities fortifies, rather than
weakens, First Amendment values. Plaintiffs basically attempt to
place city councils between a rock and a hard place. If councils draft
an ordinance with exceptions, those exceptions are subject to a vague-
ness challenge. If they neglect to provide exceptions, then the ordi-
nance is attacked for not adequately protecting First Amendment
freedoms. It hardly seems fitting, however, for courts to chastise
elected bodies for protecting expressive activity. The Charlottesville
ordinance is constitutionally stronger with that protection than with-
out.*
The First Amendment exception also does not accord unfettered
discretion to law enforcement officials. Every criminal law, of course,
reposes some discretion in those who must enforce it. The mere possi-
bility that such discretion might be abused hardly entitles courts to
strike a law down. Police Chief Wolford's deposition, relied on by
plaintiffs, does not indicate an actual risk of arbitrary enforcement. In
response to a question from plaintiffs' counsel about whether a late
_________________________________________________________________
*The dissenting opinion suggests that the First Amendment exception
would be improved if it included a scienter element. See post at 52. A
scienter requirement might serve a beneficial narrowing function if § 17-
7(b)(8) imposed criminal liability. The provision, however, provides an
exception from liability for persons who otherwise would be in violation
of the curfew. It is not clear why the dissent would want to narrow this
safe haven by requiring minors to satisfy an additional state-of-mind
requirement.
16
night conversation about politics between two fifteen-year-olds in a
coffee house fell within the exception for First Amendment activities,
he stated: "You're indoors, it's a public location, I, I think technically
under the ordinance it may be a violation. I doubt whether we would
deal with it." Such hedged deposition testimony about a speculative
hypothetical does not demonstrate that police will enforce the curfew
arbitrarily. See Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 503 (1982).
The First Amendment exception provides adequate notice to citi-
zens. It is perfectly clear that core First Amendment activities such as
political protest and religious worship after midnight would be pro-
tected. It is equally clear that rollerblading would not. Between these
poles may lie marginal cases, which can be taken as they come. Id.at 503 n.21.
The ordinance also provides an exception for activities sponsored
by civic organizations. Plaintiffs argue that the Supreme Court found
the term "civic" to be vague when it struck down an ordinance that
required permits for door-to-door solicitation but exempted several
groups, including "Borough Civic Groups and Organizations." Hynes
v. Mayor of Oradell, 425 U.S. 610, 621 (1976). We do not read Hynes
to stand for the broad proposition that any use of the term civic is per
se vague. The Court in Hynes found several of the terms used to
describe the exempted groups, including "Borough Civic Groups and
Organizations," to be unclear. Id. Here the language of the exception
is clearer and includes activities sponsored by school and religious
organizations in addition to civic organizations. Considered in this
context, we believe that the City intended to give civic its ordinary
meaning: "concerned with or contributory to general welfare and the
betterment of life for the citizenry of a community or enhancement of
its facilities." Webster's Third New International Dictionary
(Unabridged) 412 (1961). We decline to find this everyday use of the
term civic to suffer an ambiguity of constitutional magnitude. See
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).
The ordinance also creates an exception in cases where a minor is
involved in an emergency. Without citation to authority, plaintiffs
pose a variety of hypothetical situations in which this exception may
or may not apply. For example, they wonder whether the exception
17
would include the need to go to a store to purchase cough medicine
or a thermometer. Once again, the existence of questions at the mar-
gins does not justify striking down the exception altogether. A brief
review of the exception illuminates many situations to which it
plainly applies. The ordinance specifically defines emergency as "re-
fer[ring] to unforeseen circumstances, or the status or condition
resulting therefrom, requiring immediate action to safeguard life, limb
or property." Charlottesville, Va. Code § 17-7(a). It further details
that "[t]he term includes, but is not limited to, fires, natural disasters,
automobile accidents, or other similar circumstances." Id. While
"[t]here is little doubt that imagination can conjure up hypothetical
cases" to test the meaning of emergency, these speculative musings
do not render this term unconstitutionally vague. American Communi-
cations Ass'n v. Douds, 339 U.S. 382, 412 (1950).
Plaintiffs' vagueness claims threaten to make the drafting of a cur-
few ordinance an impossible task. The practical exceptions to the
City's curfew shall not provide the cause of its demise.
VI.
Our dissenting colleague insists that the Charlottesville ordinance
must satisfy strict scrutiny, that it is not narrowly tailored, and that it
is void for vagueness. Under the dissent's stringent application of
these standards, however, no curfew ever would pass constitutional
muster. In particular, no ordinance would survive the dissent's ver-
sion of strict scrutiny, which disregards the Supreme Court's recogni-
tion that such inquiry should not be "strict in theory, but fatal in fact."
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995)
(internal quotation marks omitted). Any locality in the nation that
chose to enact a curfew would ultimately see it picked to death in the
courts. A brief look at the dissent's analysis indicates why this is so.
To begin with, the dissent downplays the interests of the commu-
nity, namely Charlottesville's goals of promoting the well-being of its
youngest citizens and of fostering parental responsibility. The dis-
sent's suggestion that these interests are compelling only when the
state proceeds in a manner "supportive of the parental role," post at
41, is not consistent with the prevalence of legislative measures (such
as age limitations on drinking and on driving) that may, on occasion,
18
frustrate the desires of individual parents. Moreover, by granting a cit-
izen's veto to every parent in the community, the dissent would con-
vert the compelling interest requirement into a rule of unanimity. This
high a constitutional bar is antithetical to the values of democratic
innovation.
The same disablement of democratic authority is evident in the dis-
sent's strict reading of means. The dissent does agree that Charlottes-
ville's interest in reducing juvenile crime is compelling, but then
subjects the curfew to an impossibly narrow tailoring standard. Tell-
ingly, the dissent fails to point to less restrictive means that the City
might have employed. Forbidding preventive measures such as cur-
fews propels localities to the harshest of alternatives -- waiting for
juveniles actually to commit criminal offenses and then apprehending,
prosecuting, and punishing them. Neither minors nor the City would
gain from this result.
Finally, no ordinance could ever meet the precision envisioned by
the dissent's "strict vagueness standard." Post at 49. The dissent
argues that the labyrinthine nature of First Amendment doctrine
requires a curfew exception drawn in labyrinthine detail. Forcing city
councils to pursue such an elusive goal would prevent them from ever
passing an ordinance. The vagueness doctrine's basic notice principle
does not impose such an impediment.
The Charlottesville curfew serves not only to head off crimes
before they occur, but also to protect a particularly vulnerable popula-
tion from being lured into participating in such activity. Contrary to
the dissent's protestation, we do not hold that every such curfew ordi-
nance would pass constitutional muster. The means adopted by a
municipality must bear a substantial relationship to significant gov-
ernmental interests; the restrictiveness of those means remains the
subject of judicial review. As the district court noted, however, the
curfew law in Charlottesville is "among the most modest and lenient
of the myriad curfew laws implemented nationwide." Charlottes-
ville's curfew, compared to those in other cities, is indeed a mild reg-
ulation: it covers a limited age group during only a few hours of the
night. Its various exceptions enable minors to participate in necessary
or worthwhile activities during this time. We hold that Charlottes-
19
ville's juvenile curfew ordinance comfortably satisfies constitutional
standards.
Accordingly, we affirm the judgment of the district court. We do
so in the belief that communities possess constitutional latitude in
devising solutions to the persistent problem of juvenile crime.
AFFIRMED
Appendix
AN ORDINANCE
TO AMEND AND REORDAIN SECTION 17-7 OF CHAPTER 17
OF THE CHARLOTTESVILLE CITY CODE, 1990,
AS AMENDED, RELATING TO A GENERAL CURFEW
FOR MINORS
BE IT ORDAINED by the Council of the City of Charlottesville,
Virginia that:
1. Section 17-7 of the Code of the City of Charlottesville, 1990,
as amended, is hereby amended and reordained, as follows:
Section 17-7 Curfew for Minors.
The purpose of this section is to: (i) promote the general welfare
and protect the general public through the reduction of juvenile vio-
lence and crime within the City; (ii) promote the safety and well-
being of the City's youngest citizens, persons under the age of seven-
teen (17), whose inexperience renders them particularly vulnerable to
becoming participants in unlawful activities, particularly unlawful
drug activities, and to being victimized by older perpetrators of crime;
and (iii) foster and strengthen parental responsibility for children.
(a) Definitions.
As used within this section 17-7, the following words and phrases
shall have the meanings ascribed to them below:
20
"Curfew hours" refers to the hours of 12:01 a.m. through 5:00 a.m.
on Monday through Friday, and 1:00 a.m. through 5:00 a.m. on Satur-
day and Sunday.
"Emergency" refers to unforeseen circumstances, or the status or
condition resulting therefrom, requiring immediate action to safe-
guard life, limb or property. The term includes, but is not limited to,
fires, natural disasters, automobile accidents, or other similar circum-
stances.
"Establishment" refers to any privately-owned place of business
within the City operated for a profit, to which the public is invited,
including, but not limited to any place of amusement or entertain-
ment. With respect to such Establishment, the term"Operator" shall
mean any person, and any firm, association, partnership (and the
members or partners thereof) and/or any corporation (and the officers
thereof) conducting or managing that Establishment.
"Minor" refers to any person under seventeen (17) years of age
who has not been emancipated by court order entered pursuant to Sec-
tion 16.1-333 of the Code of Virginia, 1950, as amended.
"Officer" refers to a police or other law enforcement officer
charged with the duty of enforcing the laws of the Commonwealth of
Virginia and/or the ordinances of the City of Charlottesville.
"Parent" refers to:
(1) a person who is a minor's biological or adoptive par-
ent and who has legal custody of a minor (including either
parent, if custody is shared under a court order or agree-
ment);
(2) a person who is the biological or adoptive parent with
whom a minor regularly resides;
(3) a person judicially appointed as a legal guardian of
the minor; and/or
21
(4) a person eighteen (18) years of age or older standing
in loco parentis (as indicated by the authorization of an indi-
vidual listed in part(s) (1), (2) or (3) of this definition,
above, for the person to assume the care or physical custody
of the child, or as indicated by any other circumstances).
"Person" refers to an individual, not to any association, corpora-
tion, or any other legal entity.
"Public Place" refers to any place to which the public or a substan-
tial group of the public has access, including, but not limited to:
streets, highways, roads, sidewalks, alleys, avenues, parks, and/or the
common areas of schools, hospitals, apartment houses, office build-
ings, transportation facilities and shops.
"Remain" refers to the following actions:
(1) to linger or stay at or upon a place; and/or
(2) to fail to leave a place when requested to do so by an
officer or by the owner, operator or other person in control
of that place.
"Temporary care facility" refers to a non-locked, non-restrictive
shelter at which minors may wait, under visual supervision, to be
retrieved by a parent. No minors waiting in such facility shall be
handcuffed and/or secured (by handcuffs or otherwise) to any station-
ary object.
(b) It shall be unlawful for a minor, during curfew hours, to remain
in or upon any Public Place within the City, to remain in any motor
vehicle operating or parked therein or thereon, or to remain in or upon
the premises of any Establishment within the City, unless:
(1) the minor is accompanied by a parent; or
(2) the minor is involved in an emergency; or
(3) the minor is engaged in an employment activity, or is
going to or returning home from such activity, without
detour or stop; or
22
(4) the minor is on the sidewalk directly abutting a place
where he or she resides with a parent; or
(5) the minor is attending an activity sponsored by a
school, religious, or civic organization, by a public organi-
zation or agency, or by another similar organization or
entity, which activity is supervised by adults, and/or the
minor is going to or returning from such an activity without
detour or stop; or
(6) the minor is on an errand at the direction of a parent,
and the minor has in his or her possession a writing signed
by the parent containing the following information: the
name, signature, address and telephone number of the parent
authorizing the errand, the telephone number where the par-
ent may be reached during the errand, the name of the
minor, and a brief description of the errand, the minor's des-
tination(s) and the hours the minor is authorized to be
engaged in the errand; or
(7) the minor is involved in interstate travel through, or
beginning or terminating in, the City of Charlottesville; or
(8) the minor is exercising First Amendment rights pro-
tected by the United States Constitution, such as the free
exercise of religion, freedom of speech and the right of
assembly.
(c) It shall be unlawful for a minor's parent to knowingly permit,
allow or encourage such minor to violate 17-7(b).
(d) It shall be unlawful for a person who is the owner or operator
of any motor vehicle to knowingly permit, allow or encourage a viola-
tion of 17-7(b).
(e) It shall be unlawful for the Operator of any Establishment, or
for any person who is an employee thereof, to knowingly permit,
allow or encourage a minor to remain upon the premises of the Estab-
lishment during curfew hours. It shall be a defense to prosecution
23
under this subsection that the Operator or employee of an Establish-
ment promptly notified the police department that a minor was pres-
ent at the Establishment after curfew hours and refused to leave.
(f) It shall be unlawful for any person (including any minor) to give
a false name, address, or telephone number to any officer investigat-
ing a possible violation of this section 17-7.
(g) Enforcement.
(1) Minors. Before taking any enforcement action hereun-
der, an officer shall make an immediate investigation for the
purpose of ascertaining whether or not the presence of a
minor in a public place, motor vehicle and/or Establishment
within the City during Curfew hours is in violation of 17-
7(b).
(A) If such investigation reveals that the pres-
ence of such minor is in violation of 17-7(b), then:
(1) if the minor has not previously been
issued a warning for any such violation, then the
officer shall issue a verbal warning to the minor,
which shall be followed by a written warning
mailed by the police department to the minor
and his or her parent(s), or
(2) if the minor has previously been issued a
warning for any such violation, then the officer
shall charge the minor with a violation of this
ordinance and shall issue a summons requiring
the minor to appear in court (Ref. Va. Code
§ 16.1-260(H)(1)). And
(B) As soon as practicable, the officer shall:
(1) release the minor to his or her parent(s);
or
24
(2) place the minor in a temporary care facil-
ity for a period not to exceed the remainder of
the curfew hours, so that his or her parent(s)
may retrieve the minor; or
(3) if a minor refuses to give an officer his or
her name and address, refuses to give the name
and address of his or her parent(s), or if no par-
ent can be located prior to the end of the appli-
cable curfew hours, or if located, no parent
appears to accept custody of the minor, the
minor may be taken to a nonsecure crisis center
or juvenile shelter and/or may be taken to a
judge or intake officer of the juvenile court to be
dealt with in the manner and pursuant to such
procedures as required by law. (Ref. Va. Code
§ 16.1-260(H)(1); § 16.1-278.6; #8E8E # 16.1-
241(A)(1)).
(2) Others. If an investigation by an officer reveals that
a person has violated 17-7(c), (d) and/or (e), and if the per-
son has not previously been issued a warning with respect
to any such violation, an officer shall issue a verbal warning
to the person, which shall be followed by a written warning
mailed by the police department to the person; however, if
any such warning has previously been issued to that person
then the officer shall charge the person with a violation and
shall issue a summons directing the person to appear in
court.
(h) Each violation of this section 17-7 shall constitute a Class 4
Misdemeanor.
2. Within one year after the effective date of March 1, 1997 of
this ordinance, the City Manager shall review this ordinance and
report and make recommendations to the City Council concerning the
effectiveness of and the continuing need for the ordinance. The City
Manager's report shall specifically include the following information:
(a) the practicality of enforcing the ordinance and any problems with
enforcement identified by the Police Department; (b) the impact and
25
cost of the ordinance; (c) other data and information which the Police
Department believes to be relevant in assessing the effectiveness of
the curfew ordinance; and (d) information from citizens regarding
whether the ordinance has been administered and enforced fairly,
including information regarding the age, gender and race of those
charged or detained under the ordinance.
3. This ordinance shall be effective on March 1, 1997, at 12:01
a.m.
Approved by Council /s/ Jeanne Cox
December 16, 1996 Clerk of City Council
MICHAEL, Circuit Judge, dissenting:
Today, the majority relegates kids to second-class citizenship by
upholding Charlottesville's nighttime curfew for minors. Forbidding
children to go out at night affects their fundamental rights, and such
a restriction can be valid only if it withstands strict scrutiny. The
Charlottesville curfew ordinance fails the test because it sweeps too
broadly and usurps rather than supports parental authority over child
rearing. The ordinance has another constitutional defect as well.
Although it is a crime to violate the ordinance, the crime is only
vaguely defined. The curfew does not apply when minors are "exer-
cising First Amendment rights." This exception is unconstitutionally
vague, leaving children, their parents, and the police to guess whether
particular conduct is punishable as a crime. I respectfully dissent.
The majority attempts to brush this dissent aside by claiming that
under my approach "no curfew ever would pass constitutional mus-
ter," ante at 18. I can as easily say that under the majority's approach
no curfew would ever fail constitutional muster. I'm afraid that my
claim will be proven true. As long as the majority's standard is the
law, a city council can pass a juvenile curfew as a routine measure
because the justification is so easy to articulate. This should not stand
under the Constitution. Children make up a quarter of our population,
and their rights must not be ignored. A city council cannot order such
a large segment of the community to stay at home for thirty-three
hours of every week unless its curfew satisfies strict scrutiny. Subject-
26
ing Charlottesville's ordinance to this test does not subvert the "dem-
ocratic authority" of the City Council, see ante at 18-19. On the
contrary, the Council's authority must be exercised within constitu-
tional bounds. The Council cannot, in the name of majority rule, take
away constitutional rights of a minority, in this case all children under
seventeen.
I.
Charlottesville's curfew targets all unemancipated persons under
seventeen and applies between the hours of 12:01 a.m. and 5:00 a.m.
on week nights and 1:00 a.m. and 5:00 a.m. on Friday and Saturday
nights (Saturday and Sunday mornings). See Charlottesville, Va.,
Code § 17-7(a), (b) (hereinafter City Code). The ordinance makes it
unlawful for these minors to "remain" in public (including private
property open to the public) during curfew hours unless one of the
curfew's eight exceptions are met. See id. One of these exceptions
allows a minor to remain in public when "the minor is exercising First
Amendment rights protected by the United States Constitution, such
as the free exercise of religion, freedom of speech and the right of
assembly." Id. § 17-7(b)(8). A minor is also exempted from the cur-
few if he has written documentation that he is running an "errand" as
directed by his parent and this document meets nine statutory criteria.
See id. § 17-7(b)(6).1 Minors who violate the curfew are subject to
criminal punishment, and so are parents who "knowingly permit,
allow or encourage" their children to defy the curfew. See id. § 17-
7(c).
On March 10, 1997, Daniel Schleifer and four other minors, two
adult parents of these minors, and an eighteen-year-old adult brought
suit against the City of Charlottesville seeking a declaratory judgment
that the curfew ordinance is unconstitutional. In district court the
_________________________________________________________________
1 The written document must contain the following information: (1) the
minor's name; (2) the authorizing parent's name, (3) signature, (4)
address, and (5) telephone number; (6) the telephone number where this
parent may be reached during the pendency of the errand; (7) a "brief"
description of the errand; (8) the minor's destination or destinations; and
(9) "the hours the minor is authorized to be engaged in the errand." See
City Code § 17-7(b)(6).
27
minor plaintiffs argued their case as a Fourteenth Amendment equal
protection violation that implicates their fundamental rights, including
First Amendment and due process rights and the right to intrastate
movement. The parent plaintiffs argued that the curfew's restrictions
impermissibly burdened their due process right to exercise parental
discretion and control over the rearing of their children by making the
exercise of this discretion and control illegal. Finally, all plaintiffs
challenged the statute as being void for vagueness under the Due Pro-
cess Clause.2 The district court ruled for the City on these claims after
a trial on the merits. I would reverse on the grounds that the curfew
violates the Equal Protection Clause and is void for vagueness.
II.
Because the curfew criminalizes conduct of persons under the age
of seventeen, the City's use of this age-based classification is subject
to the limitations of the Fourteenth Amendment's Equal Protection
Clause. Generally, laws making age-based classifications are subject
to rational basis review, see Gregory v. Ashcroft, 501 U.S. 452, 470
(1991); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
313-14 (1976), and thus are upheld if there is a rational relationship
that ties the use of the classification to a legitimate governmental pur-
pose, see Heller v. Doe, 509 U.S. 312, 319-21 (1993). However, when
an age-based classification affects fundamental rights, a court must
review the classification with "the most exacting scrutiny." See Clark
v. Jeter, 486 U.S. 456, 461 (1988) (unanimous decision); see also
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666 (1990).
The Charlottesville curfew ordinance does implicate fundamental
rights. Cf. Kolender v. Lawson, 461 U.S. 352, 358 (1983) (loitering
statute implicates First Amendment liberties and"constitutional right
to freedom of movement"); Nunez v. City of San Diego, 114 F.3d 935,
944-45 (9th Cir. 1997) (holding that curfew infringed minors' funda-
mental rights). Normally, this would require the City to demonstrate
that the ordinance satisfies strict scrutiny. However, because this case
involves the fundamental rights of minors, and not those of adults, the
_________________________________________________________________
2 Like the majority, I read the plaintiffs' equal protection and due pro-
cess claims as arising under the Fourteenth Amendment, rather than the
Fifth Amendment as alleged in their complaint.
28
majority concludes that equal protection requires only intermediate
scrutiny. See ante at 4-5. I disagree. Like the Fifth and Ninth Circuits,
I would hold that the Equal Protection Clause subjects to strict scru-
tiny all governmental classifications that impact fundamental consti-
tutional rights. See Nunez, 114 F.3d at 945-46; Qutb v. Strauss, 11
F.3d 488, 492 & n.6 (5th Cir. 1993). Under this standard the Char-
lottesville curfew is unconstitutional.
A.
Some mention of the unique status of children in our society is nec-
essary to set the stage for the explanation of why strict scrutiny is nec-
essary. The Supreme Court has long recognized that "``[c]hildren have
a very special place in life which the law should reflect.'" Bellotti v.
Baird, 443 U.S. 622, 633 (1979) (Bellotti II ) (plurality opinion).
Accordingly, the Bellotti II plurality identified certain factors that the
Court has used to justify situations where "the constitutional rights of
children cannot be equated with those of adults." Id. at 634 (identify-
ing the factors as "the peculiar vulnerability of children; their inability
to make critical decisions in an informed, mature manner; and the
importance of the parental role in child rearing."). These factors
reflect the view that "[t]he unique role in our society of the family . . .
requires that constitutional principles be applied with sensitivity and
flexibility to the special needs of parents and children." See id. at 633-
34. This focus on the family and the parent-child relationship is cen-
tral in the Court's decisions and must be examined to understand
when there is justification for concluding that a minor's constitutional
rights are not coextensive with those of an adult.
The Supreme Court has consistently reflected the traditional West-
ern concept of the family as a "unit with broad parental authority over
minor children." See Parham v. J.R., 442 U.S. 584, 602 (1979).
Indeed, the Court's "``constitutional interpretation has consistently
recognized [that] parents' claim to authority in their own household
to direct the rearing of their children is basic in the structure of our
society.'" Bellotti II, 443 U.S. at 638 (quoting Ginsberg v. New York,
390 U.S. 629, 639 (1968)). This authority is undoubtedly broad.
When parental control comes into play, "unemancipated minors lack
some of the most fundamental rights of self-determination -- includ-
ing even the right of liberty in its narrow sense, i.e., the right to come
29
and go at will." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654
(1995).
However, a parent's broad authority does not generally carry over
to the state. "[O]ur constitutional system long ago rejected any notion
that a child is ``the mere creature of the State' and, on the contrary,
asserted that parents generally ``have the right, coupled with the high
duty, to recognize and prepare [their children] for additional obliga-
tions.'" Parham, 442 U.S. at 602 (quoting Pierce v. Society of Sisters,
268 U.S. 510, 535 (1925)); see also Bellotti II , 443 U.S. at 637;
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("This primary role of
the parents in the upbringing of their children is now established
beyond debate as an enduring American tradition."). The Court has
repeatedly said that it is "``cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary function
and freedom include preparation for obligations the state can neither
supply nor hinder.'" See Bellotti II, 443 U.S. at 638 (alteration in
original) (quoting Prince v. Massachusetts, 321 U.S. 158, 166
(1944)). This broad recognition of the parents' right to control the
upbringing of their children and of constitutional deference to paren-
tal authority is linked to the parents' duty to raise and protect their
children. See Lehr v. Robertson, 463 U.S. 248, 257-58 (1983); Meyer
v. Nebraska, 262 U.S. 390, 400 (1923). This deference to parents rests
on the strong presumptions that "natural bonds of affection lead par-
ents to act in the best interests of their children" and that "parents pos-
sess what a child lacks in maturity, experience, and capacity for
judgment required for making life's difficult decisions." See Parham,
442 U.S. at 602, 603; see also Bellotti II, 443 U.S. at 637; Yoder, 406
U.S. at 232.
Only in limited instances is the state able to assert a parent's broad
power to control the activities of minors. For example, when the state
acts as the legal guardian for a child, it will assume much, if not all,
of a parent's traditional prerogatives. Similarly, the teachers and
administrators of a public school will act "in loco parentis" while chil-
dren are in their physical custody because parents"``delegate part of
[their] authority'" to the school by placing their children under its
instruction. See Vernonia, 515 U.S. at 655 (quoting 1 W. Blackstone,
Commentaries on the Laws of England 441 (1769)); Bethel Sch. Dist.
30
No. 403 v. Fraser, 478 U.S. 675, 682 (1986); id. at 688 (Brennan, J.,
concurring in the judgment).3
In a similar way, the state (as parens patriae) may occasionally dis-
place the parents' primary role in child rearing in order to protect a
child's welfare. Thus, the state may trump parental discretion in delin-
quency proceedings (because parental control has already faltered),
see Schall v. Martin, 467 U.S. 253, 265 (1984); In re Gault, 387 U.S.
1, 17 (1967), or in situations where a child's "physical or mental
health is jeopardized," see Parham, 442 U.S. at 603; Yoder, 406 U.S.
at 233-34. In these circumstances, the strong presumption that parents
are able and willing to act in the best interests of their children may
be rebutted. See Parham, 442 U.S. at 602. The state's power to dis-
place parental discretion is limited, however, and must be justified on
a case-by-case basis.
That some parents "may at times be acting against the inter-
ests of their children" . . . creates a basis for caution, but is
hardly a reason to discard wholesale those pages of human
experience that teach that parents generally do act in the
child's best interests. The statist notion that governmental
power should supersede parental authority in all cases
_________________________________________________________________
3 The majority overlooks Vernonia's real thrust by quoting it to suggest
that a minor's constitutional rights with respect to the state are subject
to "customary limitations," ante at 5, that"includ[e] even the right of lib-
erty in its narrow sense, i.e., the right to come and go at will," id. (quot-
ing Vernonia, 515 U.S. at 654). Had the majority quoted the very next
line in Vernonia, it would be obvious that the case makes clear that
minors lack some of the most fundamental rights of self-determination
with respect to their parents, not the state. See 515 U.S. at 654 ("They
are subject, even as to their physical freedom, to the control of their par-
ents or guardians."). Vernonia repeatedly emphasized that a minor's
rights "vis-a-vis the State may depend on the individual's legal relation-
ship with the State" and that "central" to the Court's decision was the fact
that the children claiming a constitutional privacy right had "been com-
mitted to the temporary custody of the State as schoolmaster." See id. at
654; see also id. at 655, 656, 662, 665; cf. Nunez, 114 F.3d at 944-45(rejecting as "out of context" the same quotation the majority uses from
Vernonia).
31
because some parents abuse and neglect children is repug-
nant to American tradition.
Id. at 602-03 (citations omitted). Indeed,"[s]imply because the deci-
sion of a parent is not agreeable to a child or because it involves risks
does not automatically transfer the power to make that decision from
the parents to some agency or officer of the state." Id. at 603 (empha-
sis added). Thus, except in special circumstances, the state normally
must defer to the exercise of a broad degree of parental discretion.
It is also clear that while the state does have an independent interest
in the welfare of children, this interest may be superseded by the par-
ents' right to exercise broad discretion in raising their children. See,
e.g., Yoder, 406 U.S. at 229-30; Pierce, 268 U.S. at 534-35; Meyer,
262 U.S. at 400. Consequently, the rights of minors in relation to the
state must be analyzed to consider not only the interests of the minor
and the state but also the interests of parents. Cf. Parham, 442 U.S.
at 600 (minor's "interest is inextricably linked with the parents' inter-
est in and obligation for the welfare and health of the child"). Thus,
the analysis of a minor's rights is complicated by the addition of this
third party (a parent) who can bolster either the state's claim of
authority or the minor's assertion of rights. Cf. Yoder, 406 U.S. at 231(recognizing that "competing interests of parents, children, and the
State" requires additional analysis).4
Although the Court's language in Prince v. Massachusetts, 321
U.S. 158 (1944), "taken at its broadest sweep" would lend support to
the majority's expansive view of state power, Prince has limited
application beyond its facts. See Yoder, 406 U.S. at 229. Prince
involved a challenge to a conviction under a child labor law that made
it criminal for parents to allow boys under the age of twelve and girls
_________________________________________________________________
4 Recently, in Reno v. ACLU , 117 S. Ct. 2329, 2348 (1997), the Court
recognized that it is "clear that the strength of the government's interest
in protecting minors is not equally strong" in all applications of the Com-
munications Decency Act. Specifically, the Court indicated that the gov-
ernment's interest in protecting minors from indecent material would be
greatly diminished where "a parent allow[s] her 17-year-old to use the
family computer to obtain information on the Internet that she, in her
parental judgment, deems appropriate." See id. (emphasis added).
32
younger than eighteen to sell newspapers and similar items. See
Prince, 321 U.S. at 160-61. The Court sustained the conviction of
Mrs. Prince for taking her ward (and niece), a nine-year-old girl, with
her to assist in selling religious literature during the evening hours.
See id. at 161-62; id. at 171 (Murphy, J., dissenting); see also
Ginsberg, 390 U.S. at 638-39. The Court ruled that the state's inter-
ests in protecting the nine-year-old from psychological and physical
harms that might result from Prince's activities were sufficient to jus-
tify the conviction. See 321 U.S. at 169-70. The Court was careful to
state, however, that its decision did "not extend beyond the facts the
case presents." See id. at 171. Accordingly, the Court has since lim-
ited Prince's application to situations where there is a "``substantial
threat'" of harm to the "physical or mental health of the child or to
the public safety, peace, order, or welfare." See Yoder, 406 U.S. at
230. In light of Yoder and the facts of Prince, I read Prince to allow
a state to override parental discretion when the exercise of this discre-
tion creates a substantial threat to the health and safety of children.
In assessing this threat, Prince suggests that very young children are
particularly vulnerable to harm.
This discussion underscores the Supreme Court's recognition of the
special status of children and the predominance of the family unit. In
particular, it underscores the Court's deference to the traditional
authority of parents over the activities of their children. With this
background, I now turn to the proper standard of scrutiny that must
be applied in this case.
B.
The minors' equal protection challenge in this case must be ana-
lyzed under strict scrutiny. This conclusion flows from the basic ques-
tion the majority ignores. Why are the federal constitutional rights of
persons who are defined as minors under state law different from
those of adults? The answer is that a minor's constitutional rights are
basically the same as those of adults, but in certain situations there
may be "significant state interest[s] . . . that [are] not present in the
case of an adult" that will support a broader authority to regulate
minors. See Planned Parenthood v. Danforth, 428 U.S. 52, 75 (1976).5
_________________________________________________________________
5 There are limited differences imbedded in our Constitution. For
instance, the Twenty-Sixth Amendment guarantees the right to vote only
to those eighteen and older. See U.S. Const. amend. XXVI.
33
When these interests justify regulation, they do so not because a
minor's constitutional rights are always inferior to those of an adult
but rather because the government's specific interests as regards
minors are sometimes sufficient to allow a regulation to survive strict
scrutiny. Accordingly, I would hold that the "fundamental rights" of
minors are no less fundamental than those of adults and, thus, must
be protected with the same vigor under a strict scrutiny analysis. See
Nunez, 114 F.3d at 945.
1.
This conclusion is drawn from the Supreme Court's general
approach to analyzing the rights of minors. The Court makes it clear
that "[m]inors, as well as adults, are protected by the Constitution and
possess constitutional rights." See Danforth , 428 U.S. at 74; see also
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511
(1969) ("[s]tudents . . . are ``persons' under our Constitution [who] are
possessed of fundamental rights which the State must respect"); In re
Gault, 387 U.S. 1, 13 (1967) ("whatever may be their precise impact,
neither the Fourteenth Amendment nor the Bill of Rights is for adults
alone"). Indeed, the simple fact of age minority cannot by itself justify
a dilution of constitutional protection. See Bellotti v. Baird, 443 U.S.
622, 633 (1979) (Bellotti II) (four-vote plurality opinion) ("A child,
merely on account of his minority, is not beyond the protection of the
Constitution."). Because "[c]onstitutional rights do not mature and
come into being magically only when one attains the state-defined age
of majority," Danforth, 428 U.S. at 74 (emphasis added), all persons,
regardless of age, possess these rights under our system. Cf. Bellotti
II, 443 U.S. at 635 ("children generally are protected by the same con-
stitutional guarantees against governmental deprivations as are adults"
(emphasis added)).
While minors generally possess the same rights against govern-
mental deprivations as adults, considerations unique to minors can
lend more weight to the government's interest in regulating this class.
See Nunez, 114 F.3d at 945; Qutb, 11 F.3d 492 n.6. In Bellotti II a
four-justice plurality noted that the Supreme Court has used three rea-
sons to "justify[ ]" treating minors differently from adults under the
Constitution: "the peculiar vulnerability of children; their inability to
make critical decisions in an informed, mature manner; and the
34
importance of the parental role in child rearing." 443 U.S. at 634. If
minors are to be accorded constitutional rights unequal to adults by
reason of a particular regulation, these factors must support the gov-
ernment's assertion of greater authority. "``It is only upon such a
premise . . . that a State may deprive children of .. . rights [when a
similar deprivation] would be constitutionally intolerable for adults.'"
Bellotti II, 443 U.S. at 635 n.13 (quoting Ginsberg, 390 U.S. at 650(Stewart, J., concurring in the result)) (emphasis added).
The principle is illustrated by the Supreme Court's treatment of
statutes forbidding a minor to obtain an abortion without parental con-
sent. The Court has steadfastly insisted that such statutes must have
a judicial bypass procedure. See, e.g., Bellotti II, 443 U.S. at 647-48
(consent statute); Danforth, 428 U.S. at 72-75 (same). The analysis
used by the Court in Danforth is particularly instructive. After ruling
that a spousal consent provision was unconstitutional, the Court
addressed the statute's parental consent provision, saying that "much
of what has been said above, with respect to [spousal consent],
applies with equal force to [parental consent]." 428 U.S. at 74. The
Court explained that "[m]inors, as well as adults, are protected by the
Constitution and possess constitutional rights." Id. However, it
acknowledged that "the State has somewhat broader authority to regu-
late the activities of children than of adults." See id. Consequently, the
Court explained: "It remains, then, to examine whether there is any
significant state interest in conditioning an abortion on the consent of
a parent . . . that is not present in the case of an adult." See id. at 75(emphasis added). This analysis demonstrates that the Court did not
assume that the state always possesses broader authority to regulate
children. To the contrary, it looked to whether there were significant
interests specific to minors that justified the law, indicating that the
law would be unconstitutional if these interests did not provide suffi-
cient support for broader authority to regulate minors. After examin-
ing the interests advanced by the state, the Court struck down the
parental consent law because it lacked "sufficient justification." See
id. at 75.
The Court applied the same reasoning it used in Danforth to its
subsequent parental consent cases. In Bellotti II the Court constructed
its judicial bypass requirement to permit the consent undertaking to
apply only to those minors who could justifiably be treated differently
35
from adults. Thus, a bypass procedure must allow a minor to demon-
strate that either (1) she is mature and informed enough to make the
abortion decision herself or (2) the abortion is in her best interests.
See Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 511 (1990)
(Akron II); Bellotti II, 443 U.S. 647-48. First, the state's justification
that minors generally are not able "to make critical decisions in an
informed, mature manner," Bellotti II, 443 U.S. at 634, is lost when
a minor is adjudged mature and informed. Without the immaturity
justification, the state has little reason to, and indeed cannot, require
a parent's consent. Cf. Danforth, 428 U.S. at 75 (parent's interest in
abortion decision is outweighed by mature minor's privacy right).
Similarly, Bellotti's final consideration, that greater restrictions may
be imposed on minors to reinforce the "importance of the parental
role in child rearing," Bellotti II, 443 U.S. at 634, is premised on the
presumption that parents will discharge their "responsibility for [their]
children's well-being." See id. at 638-39. When a minor can demon-
strate to a court that an abortion is in her best interests, the state's
interest in involving the parents is reduced so much that the state can
no longer require a minor to obtain parental consent. Therefore, when
a minor is mature or an abortion is in her best interests, parental con-
sent requirements are unconstitutional because the state's interests
(specific to minors) do not justify a restriction that could not be
applied to adults.
The parental consent example demonstrates that the government
may sometimes, but not always, have interests in protecting minors
that will allow it to impose special restrictions that narrow a minor's
constitutional rights. It follows that courts must look at the regulation
in question to determine if the state has sufficient justification to
claim that a minor's rights are not the equal of an adult's. Only
through this process can the state-defined age of majority have any
significance insofar as constitutional rights are concerned.
2.
We know that we must evaluate the special interests that may jus-
tify a greater degree of governmental authority over minors in the
context of the specific regulation. Still, the question remains as to
which level of scrutiny is appropriate in cases involving constitutional
rights. Logic compels that strict scrutiny apply.
36
It is clear from the discussion above that the majority's categorical
approach is wrong. The majority would apply intermediate scrutiny
in all cases involving minors, even those in which the government has
no justification specific to minors for infringing upon their fundamen-
tal rights. In the latter situation the governmental interest in regulating
minors under the majority's approach is identical to its interest in reg-
ulating adults. Yet the rights of minors could still be treated differ-
ently because their "fundamental" rights are not protected with strict
scrutiny review. This has far ranging implications. Legislative bodies
can pass many laws regulating conduct that would pass intermediate
scrutiny but fail strict scrutiny. Under the majority's approach, such
laws could be applied to all minors but could not be applied to any
adults (whose fundamental rights are protected by strict scrutiny),
even though the government had no reason to regulate minors any
more than it did adults. The majority's holding, therefore, allows a
minor to be deprived of constitutional rights when a similar depriva-
tion would be constitutionally intolerable for adults, even though the
state lacks any reason for different treatment. This result cannot be
justified and essentially creates a second-class citizenship for all per-
sons under the age of majority. For these persons, federal constitu-
tional rights will "mature and come into being magically only when
[they] attain[ ] the state-defined age of majority," Danforth, 428 U.S.
at 74.6
Moreover, the majority's approach is completely inconsistent with
the Supreme Court's decisions on parental consent in the abortion
context. As discussed above, the state cannot constitutionally regulate
a minor's abortion rights by requiring parental consent unless the reg-
ulation provides a judicial bypass. The majority's holding, however,
would allow the state to regulate a minor's abortion rights if the
_________________________________________________________________
6 Although I disagree with the details of the approach taken by the dis-
trict court, its analysis properly focused on the existence or absence of
interests specific to minors that would justify"accord[ing] the state more
regulatory latitude in governing children in certain circumstances."
Schleifer v. City of Charlottesville, 963 F. Supp. 534, 541 (W.D. Va.
1997) (preliminary injunction analysis that was adopted in final ruling)
(emphasis added). Under its approach, only "[w]hen the Bellotti factors
. . . cut in favor of increased state oversight" will intermediate, rather
than strict, scrutiny apply. See id. at 541-42.
37
state's regulation "``is substantially related' to ``important' governmen-
tal interests," ante at 5. Such a result is clearly at odds with the
Supreme Court's approach, as the state always has an important inter-
est in regulating abortions. Beginning with Roe v. Wade, 410 U.S. 113(1973), the Supreme Court has repeatedly recognized the state's "im-
portant and legitimate interest in protecting the potentiality of human
life." Id. at 162. See also Planned Parenthood v. Casey, 505 U.S. 833,
871 (1992); Harris v. McRae, 448 U.S. 297, 324-25 (1980). This
interest by itself would enable state abortion statutes to meet interme-
diate scrutiny. Therefore, the majority's holding that intermediate
scrutiny should apply to the regulation of minors simply cannot be
squared with the Supreme Court's insistence that a state cannot
require a mature minor to obtain parental consent for an abortion.
Indeed, if the majority was correct, the state could completely ban
abortions for women under the age of eighteen. This confirms the fal-
lacy of applying intermediate scrutiny to cases involving the funda-
mental rights of minors.
I would avoid these difficulties by applying strict scrutiny to all
equal protection challenges involving fundamental rights, regardless
of whether minors or adults are involved. Under this approach, minors
must be treated the same as adults whenever the government lacks
interests specific to minors to support more restrictive regulatory
authority over them. Cf. Bellotti II, 443 U.S. at 635 n.13; Danforth,
428 U.S. at 74-75. However, when circumstances trigger governmen-
tal interests that are particular to minors, these interests, when coupled
with the government's other interests, can make the government's
claim for greater restrictions on minors much stronger. If these inter-
ests taken as a whole are compelling, the government's regulation (if
narrowly tailored) will survive strict scrutiny with respect to minors,
even though it would fail the test in the case of adults. See Nunez, 114
F.3d at 945 ("the Bellotti framework enables courts to determine
whether the state has a compelling interest justifying greater restric-
tions on minors than on adults"); Qutb, 11 F.3d at 492 n.6 (same).
This approach therefore provides a principled approach for deciding
when children may be treated differently from adults for constitu-
tional purposes.7
_________________________________________________________________
7 The majority relies on the plurality opinion in Carey v. Population
Services International, 431 U.S. 678, 691-99 (1977), to support its argu-
38
The Fifth and Ninth Circuits adopt this approach and analyze
minors' equal protection challenges with strict scrutiny when funda-
mental rights are implicated. See Nunez, 114 F.3d at 945-46; Qutb, 11
F.3d at 492 & n.6; cf. Hutchins v. District of Columbia, 144 F.3d 798,
805-10 (D.C. Cir. 1998) (opinion of Rogers, J.) (intermediate scru-
tiny); id. at 825-27 (Tatel, J., concurring in the judgment) (strict scru-
tiny); id. at 828 (Silberman, J., dissenting) (finding that no
fundamental right was affected by curfew and therefore applying
rational basis review to age-based equal protection challenge).8 I
would join these circuits and hold that the Equal Protection Clause
subjects all governmental classifications impacting on the fundamen-
tal constitutional rights of minors to strict scrutiny.
C.
The Charlottesville curfew ordinance cannot withstand strict scru-
tiny and should be struck down. The Equal Protection Clause protects
our constitutional rights by requiring that the government clear a high
hurdle before regulating in the realm of fundamental rights. Under
strict scrutiny review, "statutory classifications impinging on [a fun-
_________________________________________________________________
ment that the Charlottesville curfew should be subjected to less than
strict scrutiny. See ante at 5. Carey is a slender reed for this proposition.
First, Carey's plurality opinion was decided before Bellotti II, and later
cases have followed the reasoning of Bellotti II . Second, Carey itself is
best read as a recognition that the state's unique and significant interests
in regulating children will make it easier to justify greater restrictions on
minors than on adults. See Carey, 431 U.S. at 693 (plurality opinion).
8 Reno v. Flores, 507 U.S. 292, 301-05 (1993), indicates that strict scru-
tiny should apply when the fundamental rights of minors are involved.
In Flores a class of minors challenged an INS regulation that requires
juvenile aliens to be placed in institutional group care facilities during
the pendency of deportation proceedings if a guardian or adult relative
is not available to take custody. The Court recognized that strict scrutiny
applies "when fundamental rights are involved," see id. at 302, 305, but
it rejected the minors' due process claim because it found that no funda-
mental right existed under the circumstances of the case. See id. at 305;
cf. id. at 304 (stating that "the child's fundamental rights must not be
impaired" by INS). The approach adopted by the Fifth and Ninth Circuits
is therefore consistent with Flores' implication that strict scrutiny applies
when a minor's fundamental rights are in the balance.
39
damental] right must be narrowly tailored to serve a compelling gov-
ernmental interest." Austin v. Michigan Chamber of Commerce, 494
U.S. 652, 666 (1990); see also Memorial Hosp. v. Maricopa County,
415 U.S. 250, 269 (1974). The Charlottesville ordinance fails the
strict scrutiny test, notwithstanding its stated (and worthy) objectives
of (1) reducing juvenile crime, (2) promoting the safety and well-
being of juveniles, and (3) fostering and strengthening parental
responsibility.
1.
I quite agree with the majority that protecting the community from
serious crime is a compelling governmental interest. See ante at 6.
The problem is that the Charlottesville curfew is not narrowly tailored
to forward this goal. "Statutes affecting constitutional rights must be
drawn with ``precision,' and must be ``tailored' to serve their legitimate
objectives. . . . [I]f there are other, reasonable ways to achieve those
goals with a lesser burden on constitutionally protected activity, [the
government] may not choose the way of greater interference. If it acts
at all, it must choose ``less drastic means.'" Dunn v. Blumstein, 405
U.S. 330, 343 (1972) (quoting Shelton v. Tucker , 364 U.S. 479, 488
(1960)).
By restricting the freedom of minors during curfew hours, the ordi-
nance treats all minors under the age of seventeen as a threat to soci-
ety in order to protect the community from juvenile crime. This broad
restriction is not narrowly tailored to meet its objective of crime pre-
vention. The ordinance treats all minors the same even though an
exceedingly small percentage commit crimes. The Equal Protection
Clause forbids such a crude grouping when fundamental rights are at
stake, and limiting the curfew's hours and providing exceptions does
not diminish this shortcoming.
This is not to say that emergency curfews that are broadly applica-
ble and limited in duration are unconstitutional. Our circuit has previ-
ously, and properly, ruled that such emergency measures are a proper
exercise of the state's police power. See, e.g. , United States v. Chalk,
441 F.2d 1277, 1280-83 (4th Cir. 1971). Here, however, we have a
curfew with no sunset provision -- a curfew that sweeps in a vast
class, all minors under seventeen, most of whom are law-abiding. The
40
Equal Protection Clause does not permit such a broad segment of
society to be kept off the streets every night with the simple general-
ization, "We want to prevent crime." Narrow tailoring requires some-
thing less drastic.
2.
The City's second objective of promoting the safety and well-being
of juveniles also falls short under strict scrutiny. This interest is not
compelling in this case because the curfew displaces parental author-
ity. Indeed, the majority says only that the City has a "strong" interest
in protecting the youngest members of society from harm. See ante
at 6-7. "Strong" interests are not sufficient to satisfy strict scrutiny.
Only compelling interests suffice.
The City's stated interest in protecting minors under the age of sev-
enteen is not compelling here because the curfew was not designed
to be supportive of the parental role. Bellotti II recognized that "re-
strictions on minors, especially those supportive of the parental role,
may be important to the child's chances for . . . full growth and matu-
rity" and therefore can justify an increased governmental authority to
regulate the protected activities of minors. See 443 U.S. at 338-39
(emphasis added). This authority can be present when the governmen-
tal interest in regulation complements the traditional authority of the
parent. By supporting the exercise of parental discretion, the state
aligns its regulatory power with the interests of parents who have
broad discretion to control the activities of their children. The com-
bined interests of parents and the state therefore strengthen the justifi-
cation for governmental regulation. Ginsberg, for example, prohibited
the direct sale of pornographic magazines to minors in order to
strengthen parents' control over their children's access to such mate-
rial. See 390 U.S. at 631, 639. The Court was careful to note, how-
ever, that the government did not displace parental authority: "the
prohibition against sales to minors does not bar parents who so desire
from purchasing the magazines for their children." See id. at 639; see
also Reno v. ACLU, 117 S. Ct. at 2346-48. Laws like the one in
Ginsberg may thus be justified because they defer to parental author-
ity and decisionmaking.
41
The Charlottesville ordinance, however, paternalistically displaces
the exercise of parental discretion by making it illegal for parents to
allow their children to move about independently at night. Yet parents
are better able to assess their children's maturity and capacity for
judgment than a city council. Parents may legitimately decide that the
best way to raise their children is to permit them to be out on their
own after midnight on occasion. See Nunez, 114 F.3d at 952. In other
words, parents may legitimately conclude that the risk of granting
children some independence is small compared to the benefits result-
ing from the gradual development of maturity and judgment that is
needed in preparation for a responsible adult life. This exercise of
parental discretion is impossible under the ordinance.9
Indeed, the ordinance was purposefully designed to displace paren-
tal discretion with the will of the City Council. On the day the curfew
was enacted, the Council's agenda said the following about the cur-
few's purpose: "parental responsibility for the whereabouts of their
children is the norm and where that does not exist, then the legal sanc-
tion should enforce such responsibility. Further, well communicated
curfew ordinances . . . impose a community-wide standard on parents
who are unable or unwilling to set such limits." (Emphasis added).
Rather than supporting the parental role, this curfew supersedes it. It
reflects the "statist notion that governmental power should supersede
parental authority in all cases because some parents" fail to exercise
control over their children. See Parham, 442 U.S. at 603. This gov-
ernmental paternalism is "repugnant to American tradition." Id. Con-
sequently, because the curfew attempts to achieve its stated purpose
of promoting the safety and well-being of minors by displacing paren-
tal authority over the upbringing of children, the curfew does not
serve a compelling governmental interest.
_________________________________________________________________
9 The curfew's sixth exception allows a minor to run an "errand" for his
parent if he carries a signed document meeting nine statutory criteria. See
City Code § 17-7(b)(6). This rigid exception, with its bureaucratic
demand for detail, does not afford parents the discretion to allow their
children to operate with any degree of independence. See supra note 1
(listing nine requirements).
42
3.
It follows that the ordinance's third stated purpose of fostering and
strengthening parental responsibility also falls short. Ginsberg and
Bellotti II recognize that laws "supportive of the parental role,"
Bellotti II, 443 U.S. at 638 (emphasis added), may justify some limi-
tation on the constitutional rights of minors. However, when laws dis-
place the primacy of parental discretion by imposing community-wide
norms, the traditional authority of parents over child rearing is no lon-
ger available to support any limitation on the rights of minors. The
curfew's attempt to foster and strengthen parental responsibility by
displacing parental authority does not support a compelling state
interest.
For these reasons, I would hold that the Charlottesville curfew fails
to satisfy strict scrutiny and thus violates the Equal Protection Clause.
III.
Even if I could conclude that Charlottesville's curfew passed strict
scrutiny, I would hold that the ordinance as adopted is void for vague-
ness under the Due Process Clause. More specifically, I would hold
that the ordinance's First Amendment "exception" is impermissibly
vague.
A.
The vagueness doctrine of the Due Process Clause"requires that a
penal statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and discriminatory
enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983).
Although due process requires that a statute satisfy both requirements,
the second is of special importance: "``a legislature [must] establish
minimal guidelines to govern law enforcement'" and prevent arbitrary
enforcement. See id. at 357-58 (citation omitted). When statutory lan-
guage lacks sufficient "definiteness or certainty of expression," id. at
357, enforcement of the law is left to the purely subjective decisions
of the police, prosecutors, and juries. See id. at 358; Village of Hoff-
43
man Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498
(1982) (citing Grayned v. City of Rockford, 408 U.S. 104 (1972)). Our
Constitution's guarantee of due process of law makes this unaccept-
able. As the Supreme Court recognized a long time ago,
"It would certainly be dangerous if the legislature could set
a net large enough to catch all possible offenders, and leave
it to the courts to step inside and say who could be rightfully
detained, and who should be set at large. This would, to
some extent, substitute the judicial for the legislative depart-
ment of government."
Kolender, 461 U.S. at 358 n.7 (quoting United States v. Reese, 92
U.S. 214, 221 (1875)). In other words, "[w]ell-intentioned prosecutors
and judicial safeguards do not neutralize the vice of a vague law."
Baggett v. Bullitt, 377 U.S. 360, 373 (1964). The law itself must draw
a sufficiently clear line between the legal and the illegal for both our
police and our citizens.
B.
Vagueness challenges may be brought against a statute "on its
face" without regard to specific conduct, "as applied" to the plaintiff's
conduct, or on both grounds. Facial challenges strike at the heart of
the statute, and, if successful, invalidate any and all application of the
challenged provision until it is given a construction that sufficiently
clarifies it. See Steffel v. Thompson, 415 U.S. 452, 474 (1974); cf.
Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (as applied). I there-
fore agree with the majority that facial invalidity on vagueness
grounds is strong medicine that is to be administered infrequently. See
ante at 15. I disagree, however, with the majority's apparent belief
that courts have discretion to avoid invalidating a facially unconstitu-
tional statute. Cf. id. ("It is preferable for courts to demonstrate
restraint by entertaining challenges to applications of a law as those
challenges arise"). Courts rarely invalidate a law for facial vagueness.
This is not because courts exercise discretionary restraint but because
few facial challenges satisfy the high burden normally imposed. As
a general rule, a law is vague on its face "only if [it] is impermissibly
vague in all of its applications." See Hoffman Estates, 455 U.S. at 495
& n.7.
44
What the majority ignores is the exception to this general rule:
when "a law reaches ``a substantial amount of constitutionally pro-
tected conduct,'" facial vagueness challenges are"permit[ted]" and a
plaintiff may attack the law "``as being vague as applied to conduct
other than his own.'" See Kolender, 461 U.S. at 358 & n.8 (citations
omitted) (First Amendment rights and freedom of movement affected
by regulation of loitering and wandering); see also Hoffman Estates,
455 U.S. at 494-95 (recognizing that general rule applies only to stat-
utes that "implicate[ ] no constitutionally protected conduct" (empha-
sis added)); Gooding v. Wilson, 405 U.S. 518, 521 (1972); Aptheker
v. Secretary of State, 378 U.S. 500, 517 (1964) (facial challenge to
law restricting international travel). This exception is "logically
related and similar" to the doctrine of substantial overbreadth, see
Kolender, 461 U.S. at 358 n.8, in that it is necessitated by the chilling
effect that vague laws can have on the exercise of protected freedoms.
As the Supreme Court has explained,
The objectionable quality of vagueness and overbreadth
does not depend upon absence of fair notice to a criminally
accused or upon unchanneled delegation of legislative pow-
ers, but upon the danger of tolerating, in the area of First
Amendment freedoms, the existence of a penal statute sus-
ceptible of sweeping and improper application. These free-
doms are delicate and vulnerable, as well as supremely
precious in our society. The threat of sanctions may deter
their exercise almost as potently as the actual application of
sanctions. Because First Amendment freedoms need breath-
ing space to survive, government may regulate in the area
only with narrow specificity.
NAACP v. Button, 371 U.S. 415, 432-33 (1963) (citations and foot-
note omitted); see also Keyishian v. Board of Regents, 385 U.S. 589,
604, 609 (1967) ("The danger of [a] chilling effect upon the exercise
of vital First Amendment rights must be guarded against by sensitive
tools which clearly inform [individuals] what is being proscribed.");
Kolender, 461 U.S. at 358 n.8 (citing Button and Keyishian to support
exception to general rule). Especially, then, when chilling effects are
a danger and a "substantial amount" of protected activity is impli-
cated, facial challenges must be permitted. In other words, we do not
45
have to wait for case-by-case judicial review of particular applications
of the law.
Because the City's curfew regulates a substantial amount of pro-
tected activity, I would hold that it is subject to a facial challenge. The
Supreme Court's decision in Kolender all but mandates this conclu-
sion. In Kolender the Court held that a California loitering statute was
unconstitutionally vague on its face. The law made it a crime for per-
sons who "loiter or wander on the streets" to fail to provide "credible
and reliable" identification when a peace officer requests it under cir-
cumstances that would justify a Terry stop. See 461 U.S. at 353, 357.
See generally Terry v. Ohio, 392 U.S. 1 (1968), and later cases. The
Court permitted a facial challenge because it found that the "law
reache[d] a substantial amount of constitutionally protected conduct,"
see Kolender, 461 U.S. at 358 n.8 (internal quotation marks omitted),
notwithstanding the dissenting argument that the law was not "imper-
missibly vague in all of its applications" and could not be facially
attacked because it had an "unmistakable core that a reasonable per-
son would know is forbidden," id. at 370, 371-72 (emphasis added).
The concern that led the Court to allow the facial challenge was the
law's "``potential for arbitrarily suppressing First Amendment liber-
ties'" and the "constitutional right to freedom of movement." See id.
at 358 (quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90
(1965)). The same concerns underlie the curfew in this case. The
main difference is Charlottesville's First Amendment"exception,"
but, as I explain below, this exception is itself impermissibly vague
and therefore cannot save the statute from a facial challenge. Indeed,
the need in this case for facial review is even stronger than that in
Kolender because the curfew ordinance applies to all law-abiding
minors under the age of seventeen. The law in Kolender, by contrast,
required credible and reliable identification only when peace officers
had already made a justifiable Terry stop, that is, after they had tem-
porarily detained a suspect because of "a reasonable and articulable
suspicion that the person seized [wa]s engaged in criminal activity,"
Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam) (following
Terry). Accordingly, Kolender makes clear that a facial challenge is
appropriate in this case.
The majority errs in asserting that because "core First Amendment
activities" are protected by the ordinance, "marginal cases" may be
46
challenged as the statute is applied, see ante at 17. Even assuming that
"core" activities are protected, this argument appears to parallel the
dissenting view rejected by Kolender. The proper inquiry is not
whether some core values are protected but whether the curfew
"reaches ``a substantial amount of constitutionally protected conduct,'"
Kolender, 461 U.S. at 358 n.8 (quoting Hoffman, 455 U.S. at 494).
The First Amendment protects a substantial amount of conduct in
addition to "political protest and religious worship," ante at 17, and
the vagueness doctrine must be applied to protect these rights.10
Deferring review for as-applied challenges impermissibly risks chill-
ing the exercise of a substantial amount of constitutionally protected
activity. Cf. 11126 Baltimore Blvd., Inc. v. Prince George's County,
58 F.3d 988, 993-94 (4th Cir. 1995) (en banc) (ruling that "courts
must permit" facial challenge when there is significant risk of chilling
First Amendment speech because chill "``can be effectively alleviated
only through a facial challenge'" (quoting City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 757 (1988))). I now turn to why
Charlottesville's curfew is void for vagueness.
C.
"A law is considered [unconstitutionally] vague if ``a person of nor-
mal intelligence must guess at its meaning and differ as to its applica-
tion.'" Elliott v. Administrator, Animal & Plant Health Inspection
Serv., 990 F.2d 140, 145 (4th Cir. 1993) (quoting Connally v. General
Constr., 269 U.S. 385, 391 (1926)); see also United States v. Lanier,
117 S. Ct. 1219, 1225 (1997) (unanimous decision); Roberts v. United
States Jaycees, 468 U.S. 609, 629 (1984). Although this standard
applies generally to vagueness challenges, "[t]he degree of vagueness
that the Constitution tolerates . . . depends in part on the nature of the
enactment," Hoffman Estates, 455 U.S. at 498. When a statute
involves the "economic regulation" of business, it is "subject to a less
_________________________________________________________________
10 The majority's citations to Hoffman Estates do not support the con-
clusion that federal courts may wait for as-applied challenges in "mar-
ginal cases," see ante at 17. Hoffman Estates clearly limits its analysis to
those cases in which "no constitutionally protected conduct" is impli-
cated by the challenged law. See 455 U.S. at 494-95, 497; Kolender, 461
U.S. at 458 n.8. A wait-and-see approach is justified only when there is
no risk of chilling a substantial amount of protected activity.
47
strict vagueness test." Id. at 498. Similarly, if a law includes a scienter
requirement, this too will relax the degree of clarity required because
scienter can "mitigate a law's vagueness." See id. at 499. On the other
hand, "the standard of certainty is higher" for statutes that impose
criminal, as opposed to civil, sanctions. See Kolender, 461 U.S. at 358
n.8; Hoffman Estates, supra at 498-99. The last and "most important
factor affecting the [degree of] clarity that the Constitution demands
of a law is whether it threatens to inhibit the exercise of constitution-
ally protected rights." Id. at 499. If it does, "a more stringent vague-
ness test should apply" so that protected activity will not be chilled.
See id.; see also Smith v. Goguen, 415 U.S. 566, 573 (1974) ("Where
a statute's literal scope, unaided by a narrowing state court interpreta-
tion, is capable of reaching expression sheltered by the First Amend-
ment, the [vagueness] doctrine demands a greater degree of
specificity than in other contexts."); Grayned, 408 U.S. at 109("[W]here a vague statute ``abut[s] upon sensitive areas of basic First
Amendment freedoms,' it ``operates to inhibit the exercise of [those]
freedoms.'" (second and third alterations in original)); Button, 371
U.S. at 432 (standard is "strict in the area of free expression"). These
factors all point to the conclusion that the Charlottesville curfew must
be evaluated for vagueness under a strict standard. Under that stan-
dard, I would hold that the ordinance's First Amendment exception
violates the Due Process Clause.11
_________________________________________________________________
11 Federal courts do not look simply to the statutory language to deter-
mine if the law is vague. If a federal statute is involved, a federal court
may construe the disputed provision to remove its vagueness. See United
States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 130 n.7
(1973); cf. CISPES v. FBI, 770 F.2d 468, 473-75 (5th Cir. 1985) (con-
struing federal statute to avoid overbreadth). Likewise, when a state pro-
vision is challenged as vague on its face, a federal court must "``consider
any limiting construction that a state court or enforcement agency has
proffered.'" See Ward v. Rock Against Racism , 491 U.S. 781, 795-96
(1989) (quoting Hoffman Estates, 455 U.S. at 494 n. 5). If no narrowing
interpretation is provided by the state, however, a federal court is "with-
out power to remedy the [statute's] defects by giving [it] constitutionally
precise content." See Hynes v. Mayor of Oradell, 425 U.S. 610, 622
(1976); see also Smith v. Goguen, 415 U.S. 566, 575 (1974).
48
D.
The last of the curfew's eight statutory exceptions allows a minor
to remain in public during curfew hours when "the minor is exercising
First Amendment rights protected by the United States Constitution,
such as the free exercise of religion, freedom of speech and the right
of assembly." City Code § 17-7(b)(8). Because this exception oper-
ates in an area of protected conduct, it must satisfy a strict vagueness
standard so as not to chill the exercise of constitutional rights. Under
this standard, the curfew's First Amendment "exception" makes the
ordinance impermissibly vague. By defining the exception in vague
and ambiguous terms, the ordinance impermissibly forces persons of
normal intelligence to guess as to what conduct is illegal and fails to
provide minimal guidelines for law enforcement.
The vagueness of the First Amendment exception is intuitively
plain. Indeed, its language is anything but clear. What are "First
Amendment rights"? What is considered to be "speech"? Does it
include written communication? What of expressive conduct that does
not involve oral or written communication? What types of speech are
"protected" by "freedom of speech"? Is commercial speech protected?
If so, to what extent? What is the "free exercise" of religion? And
what of the "right of assembly"? Do two friends have the "right" to
"assemble" or meet at a coffeehouse? This says nothing of the general
First Amendment rights (e.g., association, press, petition) that the
City's exception leaves unmentioned. The questions above are diffi-
cult enough for courts, Congress, and constitutional scholars, let alone
for someone with no legal training. And when answers are given, they
are often imprecise and turn on the specifics of a case and a balancing
of many factors. Furthermore, First Amendment jurisprudence is a
vast and complicated body of law that grows with each passing day.
As a result, criminal conduct cannot be defined by simply referring
to the title (First Amendment) or subtitle (speech or assembly) of a
particular right.
Although the Supreme Court has not addressed the First Amend-
ment issue before us, its decisions involving statutes that define crimi-
nal conduct by referring to the principles of constitutional "due
process" and "equal protection" are instructive. Like the First Amend-
ment principles of "freedom of speech" and the"free exercise of reli-
49
gion," due process and equal protection are complicated and nuanced
constitutional concepts that are not susceptible to general definition.
The existence of these rights likewise depends on the specifics of a
case and a balancing of the interests involved. As I will show, the
Supreme Court's opinions in Screws v. United States, 325 U.S. 91(1945) (plurality opinion), United States v. Guest, 383 U.S. 745, 753-
55 (1966), and later cases demonstrate that constitutional "due pro-
cess" and "equal protection" are inherently too vague to be used to
define criminal conduct without a carefully defined scienter require-
ment. This applies with at least as much, if not more, force to Char-
lottesville's mention of the First Amendment to define criminal
conduct by way of exception.
In Screws the Court upheld a statute under which several law
enforcement officers had been convicted of illegally depriving a pris-
oner of his life without "due process" of law. See 325 U.S. at 93, 100.
The defendants were prosecuted under 18 U.S.C. § 20,12 which made
it illegal to "``willfully'" deprive another"``of any rights, privileges, or
immunities secured or protected by the Constitution and laws of the
United States'" under the color of state law. See id. They argued to
the Court that this provision was impermissibly vague as applied to
their convictions for depriving the deceased of"due process" because
the law provided "no ascertainable standard of guilt." See id. at 94-95.
Justice Douglas, writing for a four-justice plurality, said that
the decisions of the courts are, to be sure, a source of refer-
ence for ascertaining the specific content of the concept of
due process. But even so the Act would incorporate by ref-
erence a large body of changing and uncertain law. That law
is not always reducible to specific rules, is expressible only
in general terms, and turns many times on the facts of a par-
ticular case. Accordingly, it is argued that such a body of
legal principles lacks the basic specificity necessary for
criminal statutes under our system of government. Congress
did not define what it desired to punish but referred the citi-
zen to a comprehensive law library in order to ascertain
what acts were prohibited. To enforce such a statute would
_________________________________________________________________
12 18 U.S.C. § 20 was the predecessor to 18 U.S.C. § 242, discussed
infra.
50
be like sanctioning the practice of Caligula who"published
the law, but it was written in a very small hand, and posted
up in a corner, so that no one could make a copy of it."
Id. at 96 (quoting Suetonius, Lives of the Twelve Caesars 278).
Indeed, seven justices indicated that § 20's use of "due process" to
define criminal conduct would have been unconstitutionally vague
without something else to mitigate its ambiguous incorporation of
constitutional principles. See id. at 105 (§ 20 must be construed with
narrow scienter requirement to "avoid grave constitutional ques-
tions"); id. at 149-50 (Roberts, J., dissenting) ("[a]ll but two" justices
agreed on this issue). However, the plurality concluded that the statute
could be saved by construing "willfully" to require a specific intent
to purposefully deprive another of a specific federal right made defi-
nite by the express terms of the Constitution and laws of the United
States or by the decisions interpreting them. See id. at 100-05. Thus,
Screws "recognized that the expansive language of due process that
provides a basis for judicial review is, when incorporated by reference
into § 242, generally ill-suited to the far different task of giving fair
warning about the scope of criminal liability," Lanier, 117 S. Ct. at
1225 (unanimous decision), but that the use of a strict scienter
requirement could sufficiently mitigate this ambiguity.
The Court in Guest relied on Screws to reject a similar vagueness
challenge to a prosecution for conspiracy to deprive black citizens of
rights protected by the Equal Protection Clause. The Court again
emphasized that the specific intent requirement of 18 U.S.C. § 241,
like that of § 242, removed the problem of the statute's vagueness.
See Guest, 383 U.S. at 753-54; id. at 785 (Brennan, J., concurring in
part) (incorporation of constitutional provisions"brings § 241 close to
the danger line of being void for vagueness" but"stringent scienter
requirement saves [it] from condemnation"); see also United States v.
Kozminski, 487 U.S. 931, 941 (1988) (tension between requirement
of "definite standard of guilt" and "incorporat[ion] by reference a
large body of potentially evolving federal law" is resolved with strict
scienter requirement).
Recently, a unanimous Supreme Court in Lanier reiterated the prin-
ciples established in Screws and Guest . The Court again recognized
that "in lieu of describing the specific conduct it forbids, [the] general
51
terms [of §§ 241 and 242] incorporate constitutional law by reference.
. . . The result is that neither the statutes nor a good many of their con-
stitutional referents delineate the range of forbidden conduct with par-
ticularity." Id. at 1224. Consequently, this "affront to the [due
process] requirement" of fair notice is made permissible only when
"willful violators" deprive (or conspire to deprive) others of rights
that "have been ``made specific' by the text or settled interpretations."
See id. at 1225 (quoting Screws, 325 U.S. at 105). "[W]illful violators
``certainly are in no position to say that they had no adequate advance
notice'" of the definition of the crime. Id. (quoting Screws, 325 U.S.
at 105).
Like the statutes in Screws, Guest, and Lanier, the Charlottesville
curfew's First Amendment exception incorporates a large and grow-
ing body of law that is not reducible to specific rules and that turn on
a balancing of numerous factors. Unlike the federal statutes, however,
the City's curfew ordinance has no scienter requirement that could
mitigate the inherent vagueness of First Amendment jurisprudence.
Most important, though, the curfew regulates in areas involving con-
stitutionally protected activity, while §§ 241 and 242 do not. In fact,
those sections are designed to punish those who willfully deprive and
conspire to deprive others of constitutional rights, as, for example, in
United States v. Lanier, where the defendant, a state judge, sexually
assaulted (in his office) several employees and others who had busi-
ness before him. Lanier, 117 S. Ct. at 1222-23. Such conduct lies far
outside of the realm of constitutionally protected action, and therefore
§§ 241 and 242 do not have to meet the strict vagueness standard that
applies when protected activity is involved. The curfew, however,
does. Consequently, the ordinance must survive scrutiny under a
vagueness standard much more strict than that applied in Screws and
Guest. Under that standard and in light of the absence of a scienter
element capable of saving the ordinance, I would hold that the First
Amendment exception and the ordinance are void for vagueness.13
_________________________________________________________________
13 The majority misses the mark when it says that a scienter require-
ment would necessarily expand, and not narrow, the breadth of Char-
lottesville's curfew because subsection (b)(8) "provides an exception
from liability" and does not affirmatively define criminal conduct. See
ante at 16 n.*. The curfew ordinance uses section (b) and its eight excep-
tions to define what conduct is illegal. See City Code § 17-7(b). With
52
The testimony of Charlottesville's Chief of Police proves the stat-
ute's ambiguity. When asked whether two fifteen-year-olds violate
the ordinance by discussing politics in a coffee shop during the cur-
few, the Chief said, "You're indoors, it's a public location, I . . . think
technically under the ordinance it may be a violation. I doubt whether
we would deal with it." Similarly, when asked if a fifteen-year-old
who plays in a band in a local restaurant after curfew hours violates
the curfew when he is not paid for the performance, the Chief
answered, "I think that technically [the minor] is possibl[y] in viola-
tion of the ordinance." However, "the officer would obviously have
to make a decision about whether they're in violation or not. And I
believe there's some discretion allowed." It is this discretion com-
bined with the failure to define with specificity what conduct is illegal
that makes the statute unconstitutional. The danger of chilling the
exercise of constitutionally protected activity arises because of the
uncertainty associated with the First Amendment exception.14
The majority errs in supporting its reasoning with the fact that city
councils appear to be placed "between a rock and a hard place," ante
at 16. While it is true that curfews without exceptions will almost
always impermissibly infringe upon substantive constitutional rights
and that curfews with exceptions may be subject to vagueness chal-
lenges, invalidation of this ordinance is still mandated by our Consti-
tution. "Our Constitution is designed to maximize individual
_________________________________________________________________
respect to subsection (b)(8) in particular, the ordinance makes it a crime
for minors to remain in public when not exercising First Amendment
rights. See id. § 17-7(b), (b)(8). Subsection (b)(8) thus plainly incorpo-
rates the First Amendment to define the scope of criminal conduct. Even
when a law is drafted to include exceptions in defining the crime, a
scienter element that is applied to the criminal provision as a whole (and
not just its exceptions) can reduce the objectionable vagueness of the
law.
14 It is of no constitutional consequence that the Chief testified that "if
there's a question [as to whether the First Amendment exception
applied,] we would go down on the side that it was a valid Constitutional
kind of activity" and "would consult with the Commonwealth Attorney
or the city attorney's office to see whether it was or not." "Well-
intentioned prosecutors and judicial safeguards do not neutralize the vice
of a vague law." Baggett, 377 U.S. at 373.
53
freedoms within a framework of ordered liberty. Statutory limitations
on those freedoms are examined for substantive authority and content
as well as for definiteness or certainty of expression." Kolender, 461
U.S. at 357 (emphasis added); see also Nunez v. City of San Diego,
114 F.3d 935, 943-44 (9th Cir. 1997) (recognizing that interpreting
curfew to avoid vagueness problems under Due Process Clause "may
make it more difficult for the statute to pass constitutional muster on
substantive grounds"). "[L]egislative bodies in draftsmanship obvi-
ously have the same difficulty as do the judicial in interpretation.
Nevertheless despite the difficulties, courts must do their best to
determine whether or not the vagueness is of such a character ``that
men of common intelligence must necessarily guess at its meaning.'"
Winters v. New York, 333 U.S. 507, 518 (1948); see also Kingsley
Int'l Pictures Corp. v. Regents of the Univ., 360 U.S. 684, 694 (1959)
(Frankfurter, J., concurring). Although we may "appreciate the diffi-
culties of drafting precise laws," we must require that all statutes meet
constitutional standards for clarity. See City of Houston v. Hill, 482
U.S. 451, 465 (1987). If we did otherwise, we would forgo our duty
to enforce the mandates of the Due Process Clause. 15
Taken to its logical conclusion, the majority's reasoning would
immunize all statutes regulating conduct involving the exercise of
First Amendment rights whenever they contain a First Amendment
"exception." Because such provisions would not be impermissibly
_________________________________________________________________
15 I also disagree with the majority's claim that the First Amendment
exception "fortifies, rather than weakens, First Amendment values." See
ante at 16. Because First Amendment rights can never be diminished by
a city ordinance, see U.S. Const. art. VI, cl. 2, the City's exception does
nothing but restate a well-settled constitutional restriction on its substan-
tive regulatory authority. Indeed, the majority's citation to CISPES v.
FBI, 770 F.2d 468 (5th Cir. 1985), contradicts its position. Cf. ante at 16.
CISPES recognized that "such a provision cannot substantively operate
to save an otherwise invalid statute." See 770 F.2d at 474. A statement
similar to the First Amendment exception in this case, however, was
used by the Fifth Circuit to determine Congressional intent and guide its
construction of the provision to avoid substantial overbreadth. See id.Here, though, we are faced with a local, not a federal, statute, and there-
fore we are without the authority to provide a limiting construction that
might save the ordinance. See Hynes, 425 U.S. at 622. The First Amend-
ment exception thus does little to advance First Amendment values.
54
vague under the majority's analysis, the statutes would be immune
from both substantive and vagueness challenges. Substantively the
statute cannot, according to its own terms, violate the constitution. In
fact, it incorporates the Constitution's protections. The upshot is that
facial attacks could never be brought and that statutes containing
these exceptions could be challenged only as they are applied. This
squarely conflicts with the Supreme Court's long-standing concern
with the potential chill of constitutionally protected activity created
by the mere existence of vague criminal statutes and the potential for
their arbitrary enforcement.
For these reasons, I would hold that the curfew's First Amendment
"exception" renders the ordinance impermissibly vague on its face.
Until the ordinance is amended by the City Council or given a con-
struction by state courts that sufficiently reduces its unconstitutional
vagueness, its enforcement conflicts with the constitutional guarantee
of due process of law.
IV.
In sum, I would hold that equal protection challenges by minors to
laws that regulate in the area of fundamental rights must be subject
to strict scrutiny. In my opinion the Charlottesville ordinance fails this
standard. Even if the ordinance survived the equal protection chal-
lenge, however, it would be unconstitutional in its present form. The
curfew's First Amendment exception is impermissibly vague in viola-
tion of the Due Process Clause. For these reasons, I respectfully dis-
sent.
55