J. Michael Smith, President — Michael P. Farris, Chairman
| ||October 1996|
Daytime Curfews& Related Loitering/Truancy Legislation: Points of Opposition
This memo is provided courtesy of Roy Hansen, Private Home Educators of California.
Daytime curfews are being proposed to help solve the problems of gangs, juvenile crime and truancy. Generally, daytime curfews, whether local ordinances or state-wide laws, make it illegal for a child under 18 years of age to be in any public place during school hours unless he falls under a listed exemption. "Public place" is typically broadly defined to include streets, highways, beaches, parks, playgrounds, shopping malls, other places of business, or any place to which the public has access. Any person who appears to be under age 18, and who is out in public during daytime curfew hours may be stopped and questioned by police.
Penalties for proposed local curfew violations vary, but include fines ranging from $50 to $1,000, jail time for parents up to six months, community service hours, driver's license suspensions, and court-approved parenting classes and juvenile counseling.
Whether a state daytime curfew law is passed, or whether local municipalities continue to pass their own versions, most of us will not have to travel very far to run afoul of a daytime curfew. In Monrovia a 22 year-old young lady was using a public telephone when a police officer questioned why she was not in school. A few minutes after being cleared by this first officer, a plain-clothes officer stopped her. Refusing to believe that she had just been cleared by another officer, he responded with "Yeah, sure," and detained her until he confirmed her story with their dispatcher.
Reasons for Opposing Daytime Curfew Laws
Daytime Curfew provisions are unsalvageable with amendments and must be defeated. Neither exemptions nor exclusions will help. They will not keep thousands of innocent children and youth from being stopped and questioned repeatedly by the police.
- Daytime curfews violate the Constitutional right of "presumption of innocence."
Daytime curfews make every child a potential suspect. Any person who appears to be under age 18 can be stopped and questioned while walking down the street, and could be asked to produce identification and other papers showing he has a valid excuse to be there. Minors, like adults, should have the peace of mind of knowing they will not be stopped by police officers unless there is reasonable suspicion to believe the minor has committed a crime. Daytime curfews unconstitutionally shift the burden of proof to the child to try to prove his innocence.
- Daytime curfews cast too broad a net.
The overwhelming majority of children who are out during "school hours" are innocent and not truant. Any of the following could be stopped and questioned when out in public during the day:
- students in schools with double sessions each day
- students in work-study/ROP who must travel to and from work
- students whose school day ends earlier or begins later than the curfew ordinance hours
- minors who graduated from high school before age 18
- students in year-round schools who are "off track"
- students whose schools have unusual days off (i.e. "staff development" days)
- students who are out of school for winter, spring, or summer break
- private and home-schooled students on different schedules
- young adults over age 18 who look younger
It is wrong to presume that young people who are out in public during any chosen day are truant. Schools in California typically hold classes 180 days per year. This means that children with perfect attendance are legitimately out of school for the remaining 80 weekdays each year. To presume that every school in a community, whether public or private, should choose the same 80 vacation days or have the same hours is ludicrous. In Seal Beach, seven young people were stopped the first two days the curfew was in effect. Two of these seven were high school graduates and legal adults. One boy was detained in the midmorning while the police verified with his school that he was not required to be in class until 1:00 that afternoon, just as he had claimed. As it turned out, none of these detained young people were truant.
- Daytime curfews use "prior restraint," common in totalitarian police states.
Instead of needing "probable cause" based on evidence that the child may have committed a crime, daytime curfews allow police to intervene without "probable cause." Simply appearing young and being out in public are enough to warrant an investigation because of the concern that a crime might be committed. This is coercive preventive government, establishing a law that restricts everyone in order to prevent crime by a few.
If a daytime curfew is implemented, there are three major possible scenarios, all of which are unacceptable. The first scenario is that, in practice, police officers will be selective in who they stop and possibly cite. This likely scenario opens up the very dangerous potential for unequal treatment of minors based upon race, looks, dress, etc. The second scenario is that every person who appears to be between 6 and 18 years old is stopped, questioned, and cited. The third scenario is that every person who appears to be between 6 and 18 must prove, on the spot, that he is exempt from the curfew. In Monrovia, the Chief of Police requested that parents register their exempted children with the police department and have them carry a special numbered card at all times when out in public during "regular school hours." Some have raised the point that citizens in Nazi Germany and the Communist Bloc were commonly required to "present their papers" without evidence of wrong doing.
Proponents of daytime curfews claim that the "exemption" clauses will protect innocent children. But these proponents miss the point. Having an exemption does absolutely nothing to keep the police from stopping a child. An exemption only potentially helps a child after he has already been stopped and detained by the police. Year-round students, children on staggered or unusual schedules, tourists, and privately-schooled children are among those who can still be detained and questioned by the police, who will determine whether or not they fit into an exemption category. In a free society, people should not be concerned that they may be stopped by police at any time and have to prove that they are not violating a law. One home schooled student in Monrovia, whose schedule requires him to be in public regularly during curfew hours, has been stopped 13 times so far (September 1996 to mid-March 1997), and as frequently as 3 times in one week. He is not guilty of or wanted on suspicion of any crime - yet he continues to be stopped even after submitting to registering with the Monrovia Police Department and receiving his numbered pass which was given to be shown to peace officers ostensibly to preclude a stop.
- Daytime curfews violate the Fifth Amendment of the U.S. Constitution.
"No person shall... be deprived of life, liberty, or property without due process of law...." "Due process" requires that no one be deprived of their liberty (e.g. forced to stay in their homes) without being convicted of an actual crime. The schools already know the names and addresses of their students. If police intervention is needed, it should be directed at those students whose schools have already identified them as being absent without excuse. Why should thousands of innocent children be subjected to the threat of interrogation when the schools and police could more easily target the students who are already known to be habitually truant? The U.S. Supreme Court stated in Papachristou v. City of Jacksonville in 1972, "The right to walk the streets, or to meet publicly with one's friends for a noble purpose or no purpose at all, and to do so whenever one pleases is an integral component in the life of a free society."
- Daytime curfews violate the Fourth Amendment of the U.S. Constitution.
"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Daytime curfews violate the Fourth Amendment by allowing unreasonable searches of persons simply for being out in public. Identification papers, notes from parents or school officials, doctor appointment reminders, etc. are personal papers, not subject to search or seizure unless there is "probable cause" of a crime.
- The state already has laws which deal comprehensively with truancy.
Daytime curfew ordinances are often presented as a way to catch truants. But current laws already address truancy. For example: "The attendance supervisor or his or her designee, a peace officer, a school administrator or his or her designee, or a probation officer may arrest or assume temporary custody, during school hours, of any minor subject to compulsory full time education or to compulsory continuation education found away from his or her home and who is absent from school without valid excuse within the county, city, or city and county, or school district." (California Education Code § 48264) Under current law, including E.C. §§ 48264-48265, an innocent minor would not be cited and required to appear at a court hearing as they could under a daytime curfew, but would be taken either to their parents or their school of enrollment.
- Daytime curfews make children easy targets for criminals posing as police officers.
In Monrovia, where daytime curfews have been in place since 1994, two teenage girls were followed to the store by two adult males in an unmarked car. Fearing for their safety, the girls walked faster and tried to ignore the car. When the car stopped and the occupants approached, the girls tried to avoid them but could not. The girls did not realize they were being stopped questioned by plain clothes police officers. With daytime curfews in place, all that a would-be predator will have to do is to look for any child out in public during the day, pose as an officer, and tell the child he is being taken in for truancy. Children will be more easily duped into stopping and talking with a stranger, because they will know that they could be stopped and detained simply for walking down the street. Even a child who has a valid excuse becomes a possible target of a child predator.
- Daytime curfews are a move in the wrong direction for a free society.
Daytime curfews are not the answer to the juvenile crime and truancy problems. In several Orange County cities, for example, the unexcused absence rate in the high schools is between .5% and 3%. Of that small percentage of minors who are absent, only a few actually commit crimes during school time or are legally truant. Daytime curfews treat all children and teens as potential criminals in the name of "preventing crime" even though the vast majority are law-abiding citizens. Daytime curfews send the wrong message to self-disciplined and responsible young people that the community makes no distinction between them and irresponsible individuals who abuse their freedom in ways detrimental to the community. When the overwhelming majority of children are not truant, it is a mistake to reduce them to the status of criminal suspects simply for being on public property during the day.
Peace officers already have the authority to stop and question anyone suspected of committing of a crime. What is needed are tougher sanctions on serious or repeated juvenile crimes, and enforcement of current laws which already address juvenile crimes and truancy. We must not treat all youths as potential criminals because we have failed to get known serious juvenile offenders off the street. A citation issued to a private school student in Norwalk states, "When not actually attending class between 8:00 a.m. and 2:00 p.m., 'off-track' students are to be at home." In Visalia, where a local daytime curfew proposal was defeated, a sign was prepared for placement in businesses in anticipation of the passage of the daytime curfew ordinance. The sign read, "The Visalia Unified School District will be notified of any student in this business during school hours." In another location, a proposed daytime curfew ordinance made it a misdemeanor crime for any business people to allow "by inaction" unexcused minors to be in their business during curfew hours. This places a burden on local merchants to verify their customers' age and possible exemption from the curfew before serving them.
Daytime curfews dangerously train young citizens to accept as normal constraints that are inconsistent with the freedom they should be educated to enjoy and use responsibly in their adult years.
Internment camps were established for Japanese Americans during World War II to prevent the crime of treason. It is an acknowledged and horrible injustice (and an example of prior restraint) to have treated all Japanese Americans as potential criminals in order to prevent crime by a few. Daytime curfews do the same thing today. It places all Americans under 18 years in confinement in order to prevent crime by a few. We support a lawful and safe society. We support the dedicated men and women in law enforcement. But regrettably, many who support daytime curfews do not have all the facts. Many front-line peace officers will be troubled by this move to reduce our freedoms. One police officer is reported to have confided that he is personally opposed to daytime curfews, but is required to enforce it in his community, and remarked that it was like Communistic countries and Nazi Germany.