MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
August 4, 2009
RE:
Juvenile Curfew
You have the following question: Does the attached curfew ordinance pass legal muster?
While there are a multitude of cases reflecting challenges to juvenile curfew laws in other
jurisdictions, there are, as far as I can determine, none, reported or unreported, in Tennessee or in
the Sixth Circuit Court of Appeals, of which Tennessee is a part. In addition, it is difficult to find
any consistent guiding principles from the juvenile curfew cases from other jurisdictions; they are
all over the place, both on the question of whether they are legal, and the reasons they are held
legal or illegal. However, there is a line of cases that supports the proposition that the state curfew
law contained in Tenn. Code Ann., ' 39-17-1701, and which the city would adopt in Section 1 of
the ordinance, might pass constitutional muster.
But Section 3 of the ordinance in question may be troublesome. I have been unable to find
a single curfew case in the United States involving a daytime curfew that applies only to a discrete
class of juveniles: those who are suspended or expelled from school. It prohibits such persons “to
be in or remain in or on a public place or a private place without the consent of the property
owner, or a person of apparent authority on behalf of the lessee or owner” between 7:30 a.m. and
3:00 p.m. on school days. I am not sure how Section 3 would fare even under the line of cases that
gives broad support to juvenile curfew ordinances.
Section 1 of the ordinance provides that the cities “adopt the provisions of the ‘Child
Curfew Act of 1995' as amended and any future amendments as codified in T.C.A. 39-17-1701 et
seq.” The problem with adopting the Child Curfew Act is that Act is restricted to adoption by a
very narrow number of counties, and municipalities in those counties, within certain population
brackets that do not include Rhea County. [Tenn. Code Ann., '' 39-17-1803 and 1804.]
But municipalities in Tennessee have the authority under their police powers to adopt
curfew ordinances; the Child Curfew Act does not appear to preempt municipal curfew
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regulations. A general emergency curfew ordinance in Memphis arising from a police strike was
upheld in American Civil Liberties Union of West Tennessee, Inc. v. Chandler, 458 F.Supp. 456
(W.Dist. Tenn. 1978). Although the court never spoke of the city’s police powers, those powers
were clearly the basis of the holding. In Bricker v. Sims, 259 S.W.2d 661 (Tenn. 1953), it appears
clear that the court believed that the City of Martin’s curfew ordinance under which four adults
were arrested was based on the city’s police powers, although it declared that “Conceding but not
deciding that the ordinance is void, nevertheless the declaration [of the defendants that the
ordinance was void] does not state a cause of action.” [At 663] Your question involves a juvenile
curfew ordinance rather than a general emergency ordinance, or a curfew ordinance that was
applied to adults, but curfew ordinances of any kind are based on the state’s delegated police
powers to municipalities. It seems likely that if the city adopted the Child Curfew Act found in
Tenn. Code Ann. '' 39-17-1701 et seq., the courts would uphold its adoption under the city’s
police powers.
Under the Municipal Court Reform Act of 2004, '16-18-302(a)(1), as amended,
municipalities can make state Class C misdemeanor municipal ordinance violations, provided the
maximum penalty for the municipal ordinance violation is no more than $50. Tenn. Code Ann., '
39-17-1703(f)(2) is qualified to be made a municipal ordinance violation; it is a Class C
Misdemeanor and already carries a fine of $50.
However, I doubt that a city can automatically adopt the Child Curfew Law “and any
future amendments codified in Tenn.Code Ann., '' 39-17-1701 et seq.,” as provided in Section 1.
If the city adopts that curfew statute, it becomes a municipal ordinance, and generally the
adoption of an amendment to that ordinance would require the passage of an ordinance.
In addition, under the Child Curfew Act, parents of a child who commits a curfew
violation are guilty of a Class C Misdemeanor, punishable by a fine of $50. [Tenn. Code Ann., '
39-17-103(f)(2)] Of course, the Act provides that the juvenile’s violations are handled by the
Juvenile Court. But Section 3 of the ordinance which deals with curfew violations by suspended
and expelled students is not part of the Child Curfew Act. If the city wishes to impose a fine on
parents for the child’s violation of Section 3, the ordinance needs to provide a penalty provision
for violations of that section.
The text of the Child Curfew Act state curfew law appears to be supported by several
juvenile curfew law cases, and may be modeled on one or more of them. [See, Bykofsky v.
Borough of Middletown, 401 F.Supp. 1242 (M.D. Pa. 1975), aff’d (without opinion) 535F.2d
1245 (3d Cir. 1976), cert denied 429 U.S. 964; Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993);
Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998).] But as I pointed out above,
there is no sure way to tell which way the Tennessee courts or the Sixth Circuit will go on curfew
cases.
Those cases, particularly the latter two, discuss the tests the courts have applied to curfew
ordinances to determine whether they are constitutional. The strict scrutiny test, and the
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intermediate scrutiny test (A rational basis test has also been used, but I doubt that the Tennessee
courts or the Sixth Circuit would apply that test to the Child Curfew Act (or ordinance)). As one
might expect, the strict scrutiny test is the most difficult test. But regardless of which test is used,
the curfew ordinance generally must be supported by governmental interests the ordinance is
designed to address. Among those interests are usually the protection of children from crime, and
the protection of the public from crime committed by children. If the court applies the strict
scrutiny test, the city must also show that the ordinance is narrowly tailored to use the least
restrictive means necessary to accomplish the governmental interests of the city. The reason
modern curfew ordinances frequently contain a number of exceptions is to ensure that they meet
the narrow tailoring requirement (but which also ensures that the ordinance in question is difficult
to enforce). Schleifer is interesting from the standpoint that the court applied the intermediate
scrutiny test, but declared that the curfew ordinance at issue would also pass the strict scrutiny
test. I do not know which test the Tennessee courts or the Sixth Circuit would use, but it appears
to me that the Child Curfew Act would also pass either test.
With respect to Section 3 of the ordinance, I cannot say that the ordinance it proposes fails
from its daytime application or from its limitation to a discrete class of expelled and suspended
students, but I suspect those two characteristics of the ordinance might be a problem. A curfew
ordinance failed on several grounds in In re Mosier, 394 N.E.2d 368 (Ohio Ct. Common Pleas,
1978), but one of them was that it exempted high school graduates: “The court cannot find any
rational basis in the avowed purpose of the ordinance, the protection of minors, for this
distinction.” [At 376] For that reason, it violated equal protection. Obviously, an ordinance that
proposes a curfew against suspended and expelled students is different than one exempting high
school graduates from the curfew; the former ordinance would seem to serve the governmental
interests of protecting suspended and expelled children from crime, and protecting other people
from their crime. It would also arguably serve the governmental interest in keeping children
under 18 in school during school hours where they would presumably be but for their suspensions
and expulsions, by helping to ensure that those children would not benefit from their suspensions
or expulsions.
But the provisions of the Child Curfew Act (ordinance), including its exceptions, do not
appear to apply to Section 3. I do not know if the city can successfully defend the ordinance
against a charge that the ordinance impermissibly creates a classification made up of juveniles
suspended or expelled from school who have no relief for any reason from the curfew, especially
those old enough to work or look for work, or to seek alternative trades and vocations.
That section appears to require that expelled or suspended students stay on their property.
It provides that such students cannot “be or remain on a public place or a private place without
consent of the property owner, lessee or a person of apparent authority acting on behalf of the
lessee or owner....” It is difficult to imagine how a person would get permission to be or remain on
a public place, or how he would get to a private place without first traversing a public place.
Private places would apparently include places of business, which generally open their doors to all
comers, and where permission to enter is generally implied. That aspect of Section 3 seems
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confusing and may be subject to an argument that it fails for vagueness.
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