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October 24, 2008

Rock Springs Proposed Ordinance 2008-18: Daytime Curfew

View HSLDA’s Memo Opposing Proposed Rock Springs Daytime Curfew >> (requires Adobe Acrobat Reader)

View HSLDA’s Memo Cover Letter >> (requires Adobe Acrobat Reader)

Author:
Rock Springs Police Chief Mike Lowell and City Attorney Vince Crow

Summary:
A daytime curfew is proposed in Rock Springs, Wyoming. The ordinance would apply to all under the age of 18 who are subject to compulsory school attendance laws unless they are specifically exempted.

Status:
The ordinance passed.

HSLDA’s Position:
Daytime curfews are gaining popularity around the country. A typical ordinance prohibits any person under the age of 18 from being in public during the hours of 8:30 a.m. to between 1:30 p.m. and 3 p.m., when school is in session. Most ordinances have provisions which allow a juvenile some legal excuses to be in public, such as permission from school or parents, an emergency, or when accompanied by a parent. Some even contain specific homeschool exemptions. Technically, a child without a legal excuse to be outside can be cited and fined for breaking the curfew. In reality, even a person who does have a legal excuse to be outside is still not protected from being questioned, detained, or held in custody until his innocence is proven.

Supporters of daytime curfews argue that juvenile crime has reached desperate levels; only a measure as harsh as a curfew will control it. Many citizens, however, see no need for the wholesale abrogation of juveniles’ liberty merely because a few “bad apples” do not abide by the law.

Daytime curfews do not deter juvenile crime: Curfew proponents rely most heavily on the argument that daytime curfews deter juvenile crime. If this premise was true, then areas that strictly enforce a curfew ordinance should have a lower juvenile crime rate than areas that do not have a curfew. A 1998 California study compared the crime rates of counties that enforced curfew ordinances and counties that did not. The study found that the crime rate of the counties where a curfew ordinance was enforced remained the same as those counties without such an ordinance. The curfews had no effect on juvenile crime.

Daytime curfews allow searches without probable cause: The Fourth Amendment of the Constitution proscribes any investigation of a citizen without “probable cause.” Under curfew ordinances, police are not bound to this principle. They have the authority to stop, question, and possibly cite anyone who appears to be young enough to be violating the curfew.

Daytime curfews assume a person is guilty until proven innocent: In many incidents were youths were stopped for violating daytime curfews, none of the teenagers had engaged in any suspicious activities. There was no evidence that they either had committed a crime or intended to commit a crime. Nonetheless, the police subjected these young people to interrogation and suspicion until they had proved their innocence. A daytime curfew reverses the long-held American presumption of “innocent until proven guilty.”

Daytime curfews punish all juveniles indiscriminately: The Constitution guarantees all citizens equal treatment under the law—courts will make no judgment based on property, wealth, or fame. Under a curfew, juveniles learn that “equal protection” means that all juveniles are punished equally, distinguishing between neither victims nor perpetrators, neither innocent nor guilty. Juveniles quickly learn that because some kids are truant and some kids commit crimes, all kids must suffer. If our liberties depend on everyone else’s good behavior, our liberties are fragile indeed.

Daytime curfews preempt existing truancy laws: Daytime curfews will supposedly curb truancy, forcing kids to stay in school and therefore get a good education. This argument encounters a legal obstacle. States already have truancy laws on their books. If a city attempts to replace statewide laws with its own law, it violates the doctrine of preemption. This doctrine teaches that state laws always take precedence over local laws. A city cannot replace a state law with its own law. Curfews are merely tougher truancy laws and are illegal according to preemption doctrine.

Daytime curfews are overbroad: Curfew laws prohibit the constitutional right to move about freely, among other activities. Any restriction of a fundamental right must be supported by a compelling governmental interest. Furthermore, the restriction must be as narrow as possible, so that it impinges on a citizen’s rights as little as possible. Daytime curfews do not meet this requirement. There are less restrictive methods of dealing with truancy and crime. Curfews are too broad and are illegal.

Daytime curfews are too vague: If a person of ordinary intelligence cannot understand what a law permits and prohibits, the law is considered“vague” and, therefore, unconstitutional. Daytime curfews can be challenged easily for vagueness. Terms such as “loitering,” “idling,” or even “being in” can be interpreted at an officer’s or court’s discretion, giving juveniles no clear idea of what they can or cannot do in public during the curfew hours. Because the ordinances are vague, they are void.

Action Requested:
None at this time.

 Other Resources

Bill Text    (requires Adobe Acrobat Reader)