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Anonymous v. City of Rochester

June 9, 2009


The opinion of the court was delivered by: Jones, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The issue before this Court is whether the juvenile nighttime curfew adopted by the Rochester City Council violates the Federal and New York State Constitutions. We hold that it does.


In 2006, the Rochester City Council (City Council) adopted chapter 45 of the Code of the City of Rochester (City Code) which established a nighttime curfew for juveniles. Under the curfew:

"It is unlawful for minors to be in or upon any public place within the City at any time between 11:00 p.m. of one day and 5:00 a.m. of the immediately following day, except that on Friday and Saturday the hours shall be between 12:00 midnight and 5:00 a.m. of the immediately following day" (Rochester City Code § 45-3). A minor is defined as "[a] person under the age of 17 [but] [t]he term does not include persons under 17 who are married or have been legally emancipated" (Rochester City Code § 45-2). The curfew provides for certain exceptions which make the prohibition under the curfew inapplicable "if the minor can prove that:

A. The minor was accompanied by his or her parent, guardian, or other responsible adult;

B. The minor was engaged in a lawful employment activity or was going to or returning home from his or her place of employment;

C. The minor was involved in an emergency situation;

D. The minor was going to, attending, or returning home from an official school, religious or other recreational activity sponsored and/or supervised by a public entity or a civic organization;

E. The minor was in the public place for the specific purpose of exercising fundamental rights such as freedom of speech or religion or the right of assembly protected by the First Amendment of the United States Constitution or Article I of the Constitution of the State of New York, as opposed to generalized social association with others; or

F. The minor was engaged in interstate travel" (Rochester City Code § 45-4).*fn1

Under § 45-6 of the City Code, "a police officer may approach a person who appears to be a minor in a public place during prohibited hours to request information, including the person's name and age and reason for being in the public place" and "may detain a minor or take a minor into custody based on a violation of [the curfew] if the police officer . . . reasonably believes that the [curfew has been violated] and . . . that none of the exceptions . . . apply" (Rochester City Code § 45-6 [A], [B], [B][1], [B][2]). "A police officer who takes a minor into custody based on a violation of [the curfew] [must] take the minor to a location designated by the Chief of Police" (Rochester City Code § 45-6 [C]).*fn2 Additionally, the ordinance states that "a violation of [the curfew] shall constitute a 'violation' as . . . defined in the [] Penal Law" (Rochester City Code § 45-5).

The "Findings and purpose" with respect to the curfew were set forth by the City Council in § 45-1. They state that:

"A. A significant number of minors are victims of crime and are suspects in crimes committed during the nighttime hours, hours during which minors should generally be off the streets and getting the sleep necessary for their overall health and quality of life. Many of these victimizations and criminal acts have occurred on the streets at night and have involved violent crimes, including the murders of teens and preteens.

B. While parents have the primary responsibility to provide for the safety and welfare of minors, the City also has a substantial interest in the safety and welfare of minors. Moreover, the City has an interest in preventing crime by minors, promoting parental supervision through the establishment of reasonable standards, and in providing for the well-being of the general public.

C. A curfew will help reduce youth victimization and crime and will advance the public safety, health and general welfare of the citizens of the City" (Rochester City Code § 45-1).

Plaintiffs, father and son, commenced the instant action challenging the validity of the curfew. They seek a declaration that the ordinance is unconstitutional and to enjoin defendants, the City of Rochester (City) and other City officials, from enforcing the ordinance on the grounds that the curfew violated Jiovon's Federal and State constitutional rights to freedom of movement, freedom of expression and association, and equal protection under the law, and Thomas' due process rights under the Federal and State Constitutions to raise his children without undue interference from the government. In addition, plaintiffs assert that the ordinance conflicts with, among other statutes, § 305.2 of the Family Court Act (FCA) and § 30.00 of the Penal Law. Supreme Court granted the City's motion to dismiss finding that the curfew (1) was not inconsistent with New York Statutes, (2) did not violate the constitutional rights of the minor, (3) does not unreasonably interfere with the rights of the parent, and (4) is not facially defective.

Declaring the ordinance unconstitutional, the Appellate Division, with two Justices dissenting, reversed and enjoined its enforcement. The court determined that the curfew was inconsistent with FCA § 305.2 and Penal Law § 30.00 because it authorized what was indistinguishable from an arrest of a minor under the age of 16 upon an alleged violation of the curfew and created criminal responsibility for a "violation" as defined in the Penal Law (56 AD3d 144-145). The court further determined that, as to minors between the ages of 16 and 17, the curfew violated the constitutional rights of both the parent and child. The court held that neither the crime statistics for the City*fn3 nor the statements and opinions from political officials and the chief of police provided the requisite nexus to withstand even intermediate scrutiny; in other words, there was no demonstrated substantial relationship between the ordinance and its stated goals (id. at 147-149). The court also determined that the curfew impermissibly interfered with parents' fundamental substantive due process right to direct and control the upbringing of their children (id. at 150).

In arguing that the curfew should be upheld, the dissenting Justices concluded that intermediate scrutiny was the proper standard of review and that crime statistics from Dallas, Texas, a City with a similar curfew, provided the necessary substantial relationship because defendants "need not produce evidence to a scientific certainty" (id. at 153 [Lunn, J. dissenting]). The dissent argued that the ordinance imposed no unconstitutional burden on a minor's First Amendment Rights and that its interference with a parent's due process rights was minimal. Additionally, the dissent found no inconsistency between the ordinance and FCA ยง 305.2 because the ordinance only ...

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