New Mexico
Court Declares Nighttime Curfew Unconstitutional
The New Mexico Supreme Court recently held that the Albuquerque nighttime curfew is unconstitutional and unenforceable because it is preempted by the state Children’s Code. In ACLU v. City of Albuquerque, Sup. Ct. No. 24, 763 (November 17, 1999), the court “conclude[d] that the Children’s Code preempts the City from enacting this Curfew ordinance because the ordinance establishes minimal sentences of incarceration and fines for juvenile activity which is not unlawful when committed by adults.”
The court characterized the ordinance as criminal in nature because it imposed fines and incarceration. “To allow municipalities to criminalize the otherwise lawful behavior of children . . . would circumvent and thereby frustrate the legislature’s intent to protect children and uniformly enforce laws of a penal nature against them.”
Only the state legislature has lawful jurisdiction to pass laws for minors accused of crimes. Cities do not have the authority to enact new crimes for minors.
Can this nighttime curfew case be used to invalidate daytime curfews around the state? Yes, Home School Legal Defense Association believes it can.
Many daytime curfews in New Mexico create a new penal offense by authorizing juvenile incarceration and fines for violation of a daytime curfew. Because daytime curfews are linked to non-attendance at school, adults cannot be charged with violating them. The legislature has specifically provided that truancy violations are not criminal, but subject to the provisions of the Children’s Code. Truancy is to be treated as a matter involving protection of the child, not as a crime against the public.
Therefore, curfews that criminalize minors for being in public during school hours are unconstitutional, preempted by the legislature. HSLDA will examine all local New Mexico daytime curfew ordinances available to us. If an ordinance violates the Supreme Court’s ruling regarding nighttime curfews, we will ask that city to repeal the ordinance. – J. Michael Smith
