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New York's Highest Court Strikes Down Rochester Juvenile Curfew Ordinance:

There have been a bunch of cases on this over the past couple of decades, and I don't have a big picture opinion about them. But it does seem to me that this particular opinion is quite unpersuasive.

The curfew barred under-17-year-olds who aren't accompanied by parents from being out in public from 11 pm to 5 am (or between midnight and 5 am Fridays and Saturdays); it had some exceptions, for employment, emergencies, various events, and exercise of "fundamental rights such as freedom of speech or religion or the right of assembly ... as opposed to general social association." Rochester's chief argument was that the curfew would reduce crime by and against under-17-year-olds. But the court didn't buy it:

Although the statistics show that minors are suspects and victims in roughly 10% of violent crimes committed between curfew hours (11:00 p.m. to 5:00 a.m.), what they really highlight is that minors are far more likely to commit or be victims of crime outside curfew hours [footnote: Looking at the hourly breakdown of minors as crime suspects and victims, more than three-quarters (75% to 86%) of all crimes that minors commit and are victims of take place during non-curfew hours.] and that it is the adults, rather than the minors, who commit and are victims of the vast majority of violent crime (83.6% and 87.8% respectively) during curfew hours. The crime statistics are also organized by days of the week and despite that minors are 64% to 160% more likely to be a victim and up to 375% more likely to be a suspect of violent crimes on Saturdays and Sundays as compared to a given weekday, surprisingly, the curfew is less prohibitive on weekends. We also note that the methodology and scope of the statistics are plainly over-inclusive for purposes of studying the effectiveness of the curfew.

To be sure, minors are affected by crime during curfew hours but from the obvious disconnect between the crime statistics and the nighttime curfew, it seems that "no effort ... [was] made by the [City] to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized." If, as the dissent argues, it is enough that from 2000 to 2005 a number of juveniles were victimized at night, then the same statistics would justify, perhaps even more strongly, imposing a juvenile curfew during all hours outside of school since far more victimization occur during those hours.

The last sentence I quoted, I think, helps show the weakness of the court's analysis. Of course a juvenile curfew during all hours outside of school would likely protect minors from crime more than a late-night curfew would. But the city isn't singleminded focused solely on protecting juveniles from crime. It also wants them to have fun -- to enjoy, to a considerable extent, the liberty that adults have.

The real reason for nighttime curfews isn't that 11 pm to 5 am are the times of maximum vulnerability for under-17-year-olds, and certainly not that under-17-year-olds are the main source, or even a disproportionate source, of crime during those hours. Rather, it's that Rochester government (and quite possibly Rochester voters) think that keeping minors off the street from 11 pm to 5 am is a fairly modest restriction on their liberty and happiness, in a way that keeping them off the street from 3 pm to 8 am would not be. This also explains why letting minors stay out until midnight on Fridays and Saturdays shouldn't be at all "surprising[]"; it's an accommodation of the desire to let under-17-year-olds enjoy themselves longer on non-school nights than on school nights.

Now maybe the government has no business protecting 16-year-olds this way, especially when their parents disagree with the government's protective plans. As I mentioned, I have no firm opinions on the scope of minors' rights to liberty of movement, or on parents' rights to allow their minor children freedom of movement without interference from the government.

But the court doesn't take this view, it seems to me. It says that children's rights to freedom of movement are substantially lesser than adults' rights, and are potentially restrictable if the law passes "intermediate scrutiny," which is to say is "'substantially related' to the achievement of 'important' government interests." It seems to suggest that if the law were sufficiently linked to the prevention of crime by or against under-17-year-olds, it would be constitutional. And it rests its rejection of the law on the grounds that "Quite simply, the proof offered by the City fails to support the aims of the curfew in this case," for the reasons I mentioned above.

This, it seems to me, is a common problem in cases that use intermediate scrutiny, or "means-ends scrutiny" more broadly (such as strict scrutiny): A court focuses on one interest, and argues that the law is a poor fit with that interest. But most laws aim at serving a bunch of different interests at once. Here, the government is trying to reduce crime by and against under-17-year-olds (hence the presence of some curfew). It's trying to reduce this crime with minimum impact on full-fledged adults, who the court seems to acknowledge have broader rights than minors do (hence the limitation of the curfew to minors, even though adults commit most of the crimes). And it's trying to reduce this crime with only a modest impact on 16-year-olds' ability to have fun.

If the law is to be struck down, it shouldn't be because the city lacks sufficient "crime statistics," or because adults commit many more crimes than minors, or because children are more often victimized on Saturdays and Sundays. Intermediate scrutiny, at least as the court has applied it, seems to have been more of a distraction than a helpful guide.

The dissent also seems right in pointing out (assuming the record evidence supports it -- I haven't looked at it) that "Of course minors are more likely to commit or be victims of crime outside curfew hours. For one thing, the curfew hours comprise only 40 out of the 168 hours in a week. As to the likelihood of becoming crime victims, most children are at home during the curfew hours, as the defendant Mayor noted. But it certainly does not follow that a child who goes out at night is less likely to become the victim of a crime than one who goes out during the day. Again, it is completely unsurprising that adults commit and are victims of most crimes during curfew hours. Adults commit more crimes than children at all hours. Indeed, this may simply be an instance of the general truth that adults, who make up some three-quarters of the population, are more likely to do anything." But that too shouldn't, I think, be the heart of the argument, for the reasons I gave above.

(The court also reasons that the law unduly interferes with parental rights, chiefly because it doesn't have an exception for children who have their parents' approval to be out. But under the court's view of parental rights, it seems that if the protecting-children rationale were accepted as a justification for restricting the children's rights, it would likely be accepted as a justification for restricting the parents' rights, which aren't that strongly protected in any event. That's why I keep the already longish post above focused on the children's rights question.)

Roger Schlafly (www):
The statistical argument in this NY decision is like striking down highway speed limits because most car accidents occur among cars obeying the speed limit.
6.9.2009 8:14pm
Oren:

Rather, it's that Rochester government (and quite possibly Rochester voters) think that keeping minors off the street from 11 pm to 5 am is a fairly modest restriction on their liberty and happiness, in a way that keeping them off the street from 3 pm to 8 am would not be.

If that's the standard, then there are all manners of "fairly modest" restrictions on the liberty &happiness of my fellow citizens that I would like to propose. What constitutes a 'modest' restriction is not, in any instance, for the voters to decide at all.
6.9.2009 8:15pm
TNeloms:

"Of course minors are more likely to commit or be victims of crime outside curfew hours. For one thing, the curfew hours comprise only 40 out of the 168 hours in a week. As to the likelihood of becoming crime victims, most children are at home during the curfew hours, as the defendant Mayor noted. But it certainly does not follow that a child who goes out at night is less likely to become the victim of a crime than one who goes out during the day. Again, it is completely unsurprising that adults commit and are victims of most crimes during curfew hours. Adults commit more crimes than children at all hours. Indeed, this may simply be an instance of the general truth that adults, who make up some three-quarters of the population, are more likely to do anything."


Perhaps, as you say, this shouldn't be the heart of the argument for either side, but it's astounding that the majority seems to fail to understand this. Their analysis of the statistics is absurd, and is the kind of thing you would find in an introduction to statistics class as an example of faulty statistical reasoning. It's disheartening to see that an educated judge could write something like what was written in the majority opinion.

The same is true for what you say about trading off danger and liberty:


The real reason for nighttime curfews isn't that 11 pm to 5 am are the times of maximum vulnerability for under-17-year-olds, and certainly not that under-17-year-olds are the main source, or even a disproportionate source, of crime during those hours. Rather, it's that Rochester government (and quite possibly Rochester voters) think that keeping minors off the street from 11 pm to 5 am is a fairly modest restriction on their liberty and happiness, in a way that keeping them off the street from 3 pm to 8 am would not be.


How could a judge fail to at least understand this, even if he doesn't agree with it or comes to a different conclusion?
6.9.2009 8:34pm
Repeal 16-17 (mail):
The decision cites U.S. Supreme Court decisions and says that law violated "the Federal and New York State Constitutions." This means, under Michigan v. Long (1983), the SCOTUS could take this case, if requested to do so. How likely would such a cert. petition be granted?
6.9.2009 9:12pm
FantasiaWHT:
Curfews are necessary because the kinds of parents who let their kids roam the streets at midnight raise the kinds of kids that nobody in their right mind wants to meet on the streets at midnight.
6.9.2009 9:13pm
Desiderius:
What are the minutes of a Rochester City Council meeting doing in the middle of a Supreme Court opinion?
6.9.2009 9:14pm
Repeal 16-17 (mail):
What are the minutes of a Rochester City Council meeting doing in the middle of a Supreme Court New York Court of Appeals opinion?


There, fixed it.
6.9.2009 9:22pm
Oren:

The decision cites U.S. Supreme Court decisions and says that law violated "the Federal and New York State Constitutions." This means, under Michigan v. Long (1983), the SCOTUS could take this case, if requested to do so.

The NYS Constitution is both adequate to sustain the conclusion and independent of the US Constitution. No dice.
6.9.2009 9:54pm
Oren:

Curfews are necessary because the kinds of parents who let their kids roam the streets at midnight raise the kinds of kids that nobody in their right mind wants to meet on the streets at midnight.

There are all kinds of people I don't want to meet (among others: PETA protesters, pro-life protesters, Jehovah's witnesses, militant atheists) at any time in the day. That fact was never before considered reasonable grounds to exclude them from the streets to protect my delicate sensibilities.

In fact, curfew laws are a relatively novel invention in our Republic, none of them (as far as I've ever heard) can trace it's provenance to before the Progressive Era (and that wonderful concept of alcohol prohibition, but I digress). The founders' generation, as it seems, was content to let families manage their own affairs as they saw fit.
6.9.2009 9:59pm
guest890:
exercise of "fundamental rights such as freedom of speech or religion or the right of assembly ... as opposed to general social association."


Can these be legally distinguished? Presumably they're referring to a narrow interpretation of "freedom of speech" and "right of assembly" as protecting e.g. political rallies, but a broader view could interpret the terms to be invoked with regard to *any* speech and assembly (minus those specifically deemed illegal, such as fraudulent speech and trespassing).
6.9.2009 10:06pm
Perseus (mail):
Curfews are necessary because the kinds of parents who let their kids roam the streets at midnight raise the kinds of kids that nobody in their right mind wants to meet on the streets at midnight.

But how are these kids going to be able to attend Midnight Basketball?
6.9.2009 10:07pm
GatoRat:
I've raised two teenagers through the curfew years in my town. They violated curfew all the time for the simple reason is that they aren't based on a rational time frame. The problem wasn't them roaming the streets, but driving back from friends' houses.

There are towns next to mine that have later or no curfews. I see no difference whatsoever between juvenile problems in those towns and mine. It actually seems the quality of the police department and whether they are complete dicks to teenagers is a more determinate factor in teenage behavior.
6.9.2009 10:42pm
Dan M.:
The reasoning by the judge is terrible, but I'm happy to see curfews struck down as an unconstitutional infringement upon the liberty of teenagers. There's no reason why a 16-year-old shouldn't be able to go to a 9 o'clock movie. A junior in high school with a late birthday shouldn't need his parents to take him to prom. And there's little reason why younger teens shouldn't be free to stroll about in the middle of the night if their parents don't mind.
6.9.2009 11:21pm
Can't find a good name:
Oren: The founders' generation also didn't have electric lighting. If a 16-year-old in the late 18th century wanted to go out at midnight to rob somebody, they would have had to carry a torch just to find their victim, which might have hampered their efforts.
6.9.2009 11:45pm
Can't find a good name:
Dan M.: Going to, attending, or returning from the prom would probably be an official school activity and thus a permitted activity under the curfew law.
6.9.2009 11:46pm
M Roy (mail):
Oren,

Maybe no current curfew law can trace its origin to before the progressive era, but I am quite sure from my reading of nineteenth century literature that thew were not at all uncommon in the late 19th century in places as diverse as Utah and Houston, Texas. This may have been evil Progressivism in action, and in New England the Curfew bell was not exactly an unheard of institution in the 1700s.
6.10.2009 12:54am
Malvolio:
If the curfew that my city was considering ever passed, my plan was to have a website hosting a petition to repeal that curfew. Then I would print up and distribute business-card-sized invitations to visit the site and sign the petition. These cards I would give in stacks to all the teens I knew, with instructions to hand a card to any law-enforcement officer they saw after the curfew hour.

Distributing a petition is of course a Constitutionally protected activity. Anyone giving out those cards is thereby shielded from the curfew!

I'm pretty sure it would work.
6.10.2009 1:07am
mattt:
We have too many laws. The state has no business placing a blanket, permanent curfew on minors. That's the parents' job.
6.10.2009 1:11am
Paul Allen:

The statistical argument in this NY decision is like striking down highway speed limits because most car accidents occur among cars obeying the speed limit.


Uh. I don't see your insinuation. In my experience (driving 20K+ miles per year) is that most accidents involve vehicles driving well below the speed limit--traveling in heavy traffic.

This is very subtle: people too often fail to distinguish between fatalities and accidents (property damage). Accidents are caused by congestion and alleviated by INCREASING vehicular speed which results in a larger road capacity and larger spacings between cars.


Second, I think you are trying to allege a base-rate neglect, but if you think most people drive the speed limit on highways you are sorely mistaken and should be ashamed of spreading b.s. used by the state to appropriate money from motorists for traffic 'infractions'. Reducing speed on the highway causes accidents when the road is near capacity.
6.10.2009 2:04am
Paul Allen:
Eugene: you are applying a rational basis review not intermediate scrutiny.
6.10.2009 2:21am
ReaderY:
A rational basis test doesn't require convincing the judge that the law is the only or best means of achieving the interest.

If the law advances the state interest, it simply doesn't matter that the judge finds that some different law might advance them better.

Otherwise, judges would simply strike down all laws disagreeing with their own beliefs and views. How could anyone think the best way to solve a governmental problem to be anything other than the one consistent with owns own philosophy? It's simply part of being human, a trait judges share with the rest of us.

As Professor Volokh points out, government often have to balance their goals with competing interests and needs. The fact that a social problem persists or a government interest keeps being perennielly frustrated is often a good indicator that the best or most direct way to address it is fraught with difficult or perilous side effects that may be harmful to others or other interests. This will often mean that the solution that might appear second or tenth best if we didn't have to think about anything else ends up being the one selected. If the problem were easy to solve without creating more problems, we might well have solved it already.

Judges don't have the resources, or mandate, to consider anything but a small number of factors, impacts, and interactions when they decide cases. That's why they're supposed to defer to legislatures.
6.10.2009 2:29am
ReaderY:

If that's the standard, then there are all manners of "fairly modest" restrictions on the liberty &happiness of my fellow citizens that I would like to propose. What constitutes a 'modest' restriction is not, in any instance, for the voters to decide at all.


Oh well. I guess we'll all have to learn to live in a dictatorship.
6.10.2009 2:32am
anon123 (mail):
My (very quiet) town in CA has a similar curfew which I assume is unconstitutional. The same statute text was struck down in LA.

I have activly encouraged my kids, and their friends to flaunt the vague text of the statute. Using the "employment" loophole, one just needs to claim that they are self employed citizen-observers of civil rights. They also refuse to explain further, or to answer any questions.

IMHO, this encourages libertarianism, and the proper disresptect for over-reaching authoritarianism.
6.10.2009 2:57am
Ricardo (mail):
A big difference between earlier history and today is the higher prevalence of single-motherhood now. A mother may set a curfew for her screw-up teenage son but how is she going to enforce it?
6.10.2009 3:04am
pete (mail) (www):
Forget the statistics for a moment, can someone explain to me why these laws are not struck down on first amendment grounds already. Don't teenagers have a right to assembly? Why doesn't "general social association" count, since I have never heard of that exception to the first amendment before? (this is an honest question, not rhetorical)

I think my town growing up had a similar curfew that rarely got enforced and I always wondered about this. Pretty much all of the time I was out that late at that age it was because I was doing something harmless like coming home from a friends house after watching a movie or playing cards, which means I would not be covered because it was "general social association".
6.10.2009 8:03am
Sid the warmonger (mail) (www):
Malvolio,

Please file for non-profit status so that I may make a tax-deductible donation to cover your printing cost.

Aside from the curfew issue, have we as a society ever really stepped back for perspective on adolescence. We keeping moving the start of adult life further and further into the future. These kids are human beings. Generations of better nutrition and medical care have them developing at much younger ages. We keep asking them to postpone life.

Get these kids in a vocational path at 15 or 16. If you can drive, you can pursue a damn career. Going to college, good. Then, you need to be working the word problems at intense math camp this summer. Want to be a plumber. Excellent. You need to learn Quickbooks and be able to lift 50lbs over your head by August.

We, as a society, are squandering the lives of the next generation. They do not need to spend 4 years propping up a bloated higher education system in an attempt to figure out what they want to do in life. You can find yourself as easily with a shovel in a ditch as you can in the air-conditioned library. Actually, I think the shovel will do it quicker and you will have more money for your efforts.
6.10.2009 8:32am
ShelbyC:

...exercise of "fundamental rights such as freedom of speech or religion or the right of assembly ... as opposed to general social association."



How do we end up with judges that think that general social association isn't a fundamental right?


And when else can we justify a gross restriction on liberty for a subset of the population based on stats that others in their demographic commit crimes?
6.10.2009 8:43am
therut (mail):
If only the courts were so enlightened regarding gun control. It obviously targets those that are not causing crime with a broad brush.
6.10.2009 9:03am
K. Dackson (mail):
Remember, they are minors. Since when does the law have to make sense?

You need parental consent to get a tatoo, but parents do not have to be notified of an abortion? Not to mention that every other medical procedure (want your teeth whitened or a brain tumor removed?) requires parental consent.

You are fully licensed to drive a motor vehicle but are not allowed to have a beer at 18?

Drivers must wear a seatbelt; motorcyclists must wear a helmet.

In NY, if you are under 18, state law says you cannot drive past 9:00 PM.

All of these laws are "modest" restrictions on personal liberty. Should these be repealed as well?

Some of them should be.
6.10.2009 9:03am
Prof. S. (mail):
Curfews are necessary because the kinds of parents who let their kids roam the streets at midnight raise the kinds of kids that nobody in their right mind wants to meet on the streets at midnight.


Well, considering I was one of those kids, and ended up turning those times out roaming into a pretty good life with a pretty good career thanks to my pretty good education, I'm a little surprised by this to say the least.

Quite frankly, when I'm out at night, it isn't teenagers who frighten me - it's adults leaving the bars.
6.10.2009 9:36am
DennisN (mail):
it had some exceptions, for employment, emergencies, various events, and exercise of "fundamental rights such as freedom of speech or religion or the right of assembly ... as opposed to general social association."


So under the stricken law, you could stay out all night, provided you were carrying a protest sign, presumably protesting against the curfew?

/snark
6.10.2009 9:52am
Ken Arromdee:
You need parental consent to get a tatoo, but parents do not have to be notified of an abortion? Not to mention that every other medical procedure (want your teeth whitened or a brain tumor removed?) requires parental consent.


Abortions are a special case for several reasons:

1) Some abortions may result from abuse by the parent or that is encouraged by the parent, and the parent may refuse to let the child have an abortion because it could expose that. It's unlikely the parent caused the child's brain tumor.

2) The parent may throw the child out of the house, abuse the child, or do other bad things, if told that the child is pregnant. It's very unlikely that the parent will do such things on a child who wants to get a brain tumor removed.

3) The abortion decision cannot be delayed until the child turns 18, like getting a tattoo. (This is true for brain tumors too, but we do in some cases allow a child to get a tumor removed against a parent's objections).

4) One likely cause of the parent's objection to abortion is religion. We generally don't let parents impose their religion on children in ways that permanently affect the child's life (after she turns 18) in a major way. Again, if the parent says "my religion doesn't allow a brain tumor operation", we do in fact overrule the parent's objections. (If we could be guaranteed that the parent would not try to stop the abortion/operation, just having notification wouldn't matter, but in real life we can't guarantee this.)
6.10.2009 9:52am
Don Miller (mail) (www):
My community has long had an 11pm curfew for minors that has been loosely enforced. To the best of my knowledge, it has been relegated to being "probably cause" for the police to pullover/question kids that they think might be up to no good.

On top of City Hall and the old Fire Station is an air horn. If you are outside it can be heard from as far away as 3 miles. My home is over a mile away and I can hear it indoors. Its original purpose was to alert volunteer fire fighters if there was a fire call. That duty has long been switched over to pagers and radios, but the old whistle still blows several times per day. It goes of at 8am, 12pm, 1pm, 5pm and 11pm.

The 11pm whistle is to signal the start of curfew.

A couple years ago, a new resident in town approached the City Council about shutting it down. Input from the community was asked for, with about 1000 residents saying keep it and 10 saying get rid of it. Like I said, it still blows every night at 11pm.
6.10.2009 10:23am
Andy C.:

Curfews are necessary because the kinds of parents who let their kids roam the streets at midnight raise the kinds of kids that nobody in their right mind wants to meet on the streets at midnight.

I'm a (somewhat) successful attorney, I have never been arrested for any crime (knock on wood), I support missionaries around the world, and I have two wonderful daughters. When I was a teenager in the late 80s/early 90s, I had no curfew. None.

My mother, who raised me, has always been involved in numerous charities and social organizations, she has always been either the pianist or the music director at her church, and, before she retired, she was a public school teacher who taught disabled/special needs children.
6.10.2009 10:28am
Oren:

Remember, they are minors. Since when does the law have to make sense?

Laws targeted at a suspect classification need to meet a higher standard than those that aren't. Hence the application of intermediate scrutiny in the instant case (under which it fails) instead of rational-basis (under which even an ardent opponent like myself concedes it ought to pass muster).
6.10.2009 10:39am
SeaDrive:
As a point of statistical analysis, if you are going to compare the percent of crimes involving youths to the percent involving adults, you also need to compare the size of the youth population to the size of the adult population. Or somewhat equivalently, you can look at the percent of youths involved in crime.

For all we can tell from the quoted statistics, the 10% of all crimes that involve young people could actually affect 100% of the young people on the street during curfew hours. Or perhaps only 1%. Can't tell.

Still, this is clearly typical blame-the-victim, make-it-illegal, convenience-of-law-enforcement politics.
6.10.2009 10:43am
ReaderY:
Dare I point out that if "general social association" were a fundamental right, laws against racial discrimination in employment etc. would have to be struck down?
6.10.2009 10:56am
Vermont Guy (mail):
Curfew during all non-shcool hours.....

Let me tell you a story. Way back in the seventy's there was a teacher's strike in the City of St. Louis. The mayor was Cervantes. He was from a leading family in St. Louis. His brother was president of St. Louis University, a Jesuit school. The Mayor couldn't have been a dummy.

Every week he gave a press conference. The local listener supported, alternative radio station broadcast this press conference block to block every week. The only news service to do so.

The mayor is talking about the strike and he says that "it is very important that our children get back to school."

The reporter from KDNA (picture this in your mind, a long haird bearded hippy freak with a portable casset recorder) interupts and says, "Why?"

Yes, Mr. Mayor, shcool is a sacred cow. Why is the cow sacred.

Cervantes stammers a moment, ask to have the question repeated, and comes up with this gem, "one of the problems we have in the city is vandalism and when school is out vandalism goes up".

Take that, Western Civilization.
6.10.2009 11:06am
Mr L (mail):
Ken: Some abortions may result from abuse by the parent or that is encouraged by the parent, and the parent may refuse to let the child have an abortion because it could expose that.

Yes, I'm sure someone who knocked up his own daughter would just love to have irrefutable, living proof of his crime hanging around. I'd love to leave it at that but I have to point out that Planned Parenthood has repeatedly declined to notify the authorities when abuse is evident so it doesn't matter anyway.

Meanwhile, those of us who aren't incestuous child rapists have a strong interest in being notified of the procedure, seeing as teenage pregnancy is evidence of irresponsible sexual behavior at best and child abuse at worst.
6.10.2009 11:16am
ShelbyC:
ReaderY:


Dare I point out that if "general social association" were a fundamental right, laws against racial discrimination in employment etc. would have to be struck down?


Wouldn't it just be laws against racial discrimination in social association?

And let me point out that althought most of us disfavor said type of discrimination, we wouldn't want it outlawed because, well, appearantly because we're not judges.
6.10.2009 11:51am
LarryA (mail) (www):
Curfews are necessary because the kinds of parents who let their kids roam the streets at midnight raise the kinds of kids that nobody in their right mind wants to meet on the streets at midnight.
I have actually raised teenagers, and worked with them professionally. I've worked in a residential setting with the kids you describe. I will just note that the only ways even the best of parents and professionals can physically keep rebellious teenagers from sneaking out will get you justifiably cited for child abuse.

Some young people, even from good homes, just have to learn the hard way.
It actually seems the quality of the police department and whether they are complete dicks to teenagers is a more determinate factor in teenage behavior.
Amen.
A big difference between earlier history and today is the higher prevalence of single-motherhood now. A mother may set a curfew for her screw-up teenage son but how is she going to enforce it?
First, given an "earlier history" average lifespan of 35 single parenthood was common back then as well. Second, while the presence of a father in the house has many benefits the special ability to enforce a curfew for a rebellious son or daughter isn't one of them.
6.10.2009 12:20pm
Ken Arromdee:
Yes, I'm sure someone who knocked up his own daughter would just love to have irrefutable, living proof of his crime hanging around.

Not letting the girl get an abortion delays the discovery for a while, even if the pregnancy ensures it will eventually be discovered. People put off problems for later all the time without having an idea of what they'll do when "later" comes.
6.10.2009 12:37pm
Mikee (mail):
Any teen worth the title, when asked after curfew what he or she was doing out past the curfew, would answer, "I'm on my way home from the planning meeting to protest the curfew."

The affirmative defense stated by the teen, if properly documented, would make an arrest or citation under the existing rule an act of police malfeasance, likely punishable.

Go get 'em teens!
6.10.2009 12:51pm
Nathan Hall (mail):
[i]This, it seems to me, is a common problem in cases that use intermediate scrutiny, or "means-ends scrutiny" more broadly (such as strict scrutiny): A court focuses on one interest, and argues that the law is a poor fit with that interest. But most laws aim at serving a bunch of different interests at once. Here, the government is trying to reduce crime by and against under-17-year-olds (hence the presence of some curfew). It's trying to reduce this crime with minimum impact on full-fledged adults, who the court seems to acknowledge have broader rights than minors do (hence the limitation of the curfew to minors, even though adults commit most of the crimes). And it's trying to reduce this crime with only a modest impact on 16-year-olds' ability to have fun.[/i]

There's only one government interest here that could justify the curfew, which is an effort to reduce crime by and against teens. The interests of minimizing the impact of the law on adults and allowing teens to have fun are served just as well or better by striking down the law as by upholding it. If the crime-prevention interest isn't sufficient to uphold the curfew, how can the state interest in having only a modest impact 16-yr-olds' ability to have fun can't save it? No impact is better still than a modest impact. A modest impact isn't a state interest in-and-of itself, but only antecedent to the desire to have a curfew law at all.

The NY Court concluded (right or wrong) that the crime-prevention interest wasn't enough to justify this curfew. Having reached that conclusion, what other state interests did they need to address? The two you mentioned only arise if crime-prevention is deemed a legitimate state interest to which the curfew is "substantially related."
6.10.2009 1:02pm
Granite26:
Not arguing the merits, just the statistics, but shouldn't the number of teenagers out late versus number of teenagers not out late matter for utility purposes?

AKA There are 10,000 teens on the street during the day and 100 crimes versus 100 teens at night and 10 crimes.
6.10.2009 1:19pm
einhverfr (mail) (www):

Curfews are necessary because the kinds of parents who let their kids roam the streets at midnight raise the kinds of kids that nobody in their right mind wants to meet on the streets at midnight.


However at the age of 18, it suddenly doesn't matter?
6.10.2009 1:48pm
einhverfr (mail) (www):

So under the stricken law, you could stay out all night, provided you were carrying a protest sign, presumably protesting against the curfew?


How about merely wearing a protest T-shirt?
6.10.2009 1:58pm
Don Miller (mail) (www):

There's only one government interest here that could justify the curfew, which is an effort to reduce crime by and against teens. The interests of minimizing the impact of the law on adults and allowing teens to have fun are served just as well or better by striking down the law as by upholding it. If the crime-prevention interest isn't sufficient to uphold the curfew, how can the state interest in having only a modest impact 16-yr-olds' ability to have fun can't save it? No impact is better still than a modest impact. A modest impact isn't a state interest in-and-of itself, but only antecedent to the desire to have a curfew law at all.


It seems to me there is another State interest besides crime reduction that is glossed over.

The State runs the schools. The State has an obligation to provide an education. Doesn't that State have an interest that the child gets a reasonable amount of sleep on school nights so that they are in a proper frame of mind to learn. There is plenty of documentation to correlate learning and sleep deprivation. The ordinance could be extended to all that are students in their public school system, even reducing the time frame to 10pm even.

Cultures about education are interesting. 20 years ago when I was living in Japan, I noticed the high number of teens that were wearing school uniforms in the evening hours and how they would all disappear from the streets real early. So I asked about it. On school nights, students were required to wear their uniforms in public. They were only allowed unescorted in certain parts of their community based on the school that served that area. By 9pm they had to be home, unless they were with their parents, no exceptions. The uniforms were distinctive enough between schools that the police could tell at a glance whether the students were in the proper part of town or not. Justified because of the State interest in providing children an education, making sure they had reasonable sleep and time to complete their homework.
6.10.2009 2:00pm
Oren:

I will just note that the only ways even the best of parents and professionals can physically keep rebellious teenagers from sneaking out will get you justifiably cited for child abuse.


If you are at the point with your children that physical restraint is the only tool left at your disposal, you've already failed miserably.

Perhaps you should work on helping families not get to that point in the first instance.
6.10.2009 2:18pm
einhverfr (mail) (www):

The State runs the schools. The State has an obligation to provide an education. Doesn't that State have an interest that the child gets a reasonable amount of sleep on school nights so that they are in a proper frame of mind to learn. There is plenty of documentation to correlate learning and sleep deprivation. The ordinance could be extended to all that are students in their public school system, even reducing the time frame to 10pm even.


In the age of MMORGS wouldn't such a restriction be extremely underinclusive?

Also by the age of 16, I was already attending college. This meant my class times were different than they would have been at the high school. Wouldn't such a restruction also be overinclusive if it failed to take into account the fact that the 16-17-year-old was not actually enrolled in the local high school and especially if it remained in force during the summer vacation?

How could such a law that would be that underinclusive and overinclusive be Constitutional?
6.10.2009 2:26pm
Michael Alexander:
Prof. Volokh,

You may be interested to read Alaska's curfew case, available here. If the link doesn't work, the citation is Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004). I have not read the New York case, but thought you might be interested to see a different take on a similar issue.
6.10.2009 2:51pm
LarryA (mail) (www):
If you are at the point with your children that physical restraint is the only tool left at your disposal, you've already failed miserably.
Have you raised teenagers?
6.10.2009 3:08pm
Hippo (mail):
Mikee:
Any teen worth the title, when asked after curfew what he or she was doing out past the curfew, would answer, "I'm on my way home from the planning meeting to protest the curfew."

Works once or twice. Definitely won't work the 3rd time.

Mikee:
The affirmative defense stated by the teen, if properly documented, would make an arrest or citation under the existing rule an act of police malfeasance, likely punishable.

The point isn't to arrest anyone. As stated above, it's probable cause to detain and question. Also it's a tool to
"move along", deterring crime.
6.10.2009 3:21pm
whit:
curfew laws are just an excuse to let the man(tm) harass innocent kids!

well... somebody had to say it

the only thing this case proves (yet again) is that people who don't understand statistics, should not make decisions based on their misunderstanding of statistics.
6.10.2009 3:26pm
ShelbyC:

Doesn't that State have an interest that the child gets a reasonable amount of sleep on school nights so that they are in a proper frame of mind to learn. There is plenty of documentation to correlate learning and sleep deprivation. The ordinance could be extended to all that are students in their public school system, even reducing the time frame to 10pm even.


Jeez, talk about your nanny state. You're talking not just a curfew, but a state-imposed bedtime? What do we need parents for anymore?
6.10.2009 3:36pm
Oren:


If you are at the point with your children that physical restraint is the only tool left at your disposal, you've already failed miserably.



Have you raised teenagers?

Relevance?

If you can't explain your positions in logical terms without resorting to force then, ipso facto, you position is without rational merit.

That some parents (thankfully not mine) are unwilling to take the time to talk to their kids reasonably is a sad state of affairs. At that point, the relationship is entirely alien and ought to be dissolved entirely, since there is obviously no meaningful parent-child bond left.
6.10.2009 4:43pm
DennisN (mail):
einhverfr:

So under the stricken law, you could stay out all night, provided you were carrying a protest sign, presumably protesting against the curfew?

How about merely wearing a protest T-shirt?


I'd fight for that.
6.10.2009 5:58pm
DennisN (mail):
Oren:

That some parents (thankfully not mine) are unwilling to take the time to talk to their kids reasonably is a sad state of affairs.


There are few things more UNreasonable than a headstrong teen-ager. Sometimes, there is simply no reasoning with them. My daughter was one of them.

At that point, the relationship is entirely alien and ought to be dissolved entirely, since there is obviously no meaningful parent-child bond left.


I disagree. Our relationship survived it. My Late wife's and current wife's relationships with their (then) lunatic daughters survived it. I suspect most do. The rabid unreasonableness is, fortunately, not a constant. Teenagers can be quite sane in their better moments.
6.10.2009 6:08pm
dweeb:
"If you can't explain your positions in logical terms without resorting to force"

So you're saying that a logical explanation of one's position is always sufficient to sway the decision process of the average teenager (or the average adult, for that matter?)

What color is the sky in your world?
6.10.2009 6:17pm
Steve H (mail):
My hometown in Illinois had an 11pm curfew for kids under 18. It was upheld as constitutional (federal constitution only) in 1990.

550 N.E.2d 12 (Ill. App. 1990).
6.10.2009 6:35pm
Desiderius:
Repeal,

"There, fixed it."

Supreme, Highest, tomato, tomahto.

I'm as much against stupid infringements of liberty as the next guy, but can't we get there without the Court styling itself a House of Lords to pass judgment on the decisions of City Governments on policy grounds, rather than Constitutional ones?

No more teaching to the test.
6.10.2009 6:43pm
Oren:

There are few things more UNreasonable than a headstrong teen-ager. Sometimes, there is simply no reasoning with them. My daughter was one of them.

And the only was she could have grown out of it was by learning self-control. If you have any evidence to suggest that one can teach self-control by imposing external physical constraint, I'm eager to hear it, but it seems to me categorically impossible. Making a choice for someone is a crutch that prevents her from learning to make choices for herself.

The fact that parenting is difficult -- teenagers are unreasonable, it is expressly parents' job to teach them reason -- is hardly an excuse not to do it.


The rabid unreasonableness is, fortunately, not a constant. Teenagers can be quite sane in their better moments.

Those moments might even become learning experiences if they were used in a constructive way.


So you're saying that a logical explanation of one's position is always sufficient to sway the decision process of the average teenager (or the average adult, for that matter?)

No, it's not. Sometimes a teenager will decide wrong, no matter how reasonable the contrary position is. My position is that it is better to let her make a mistake for herself than to prevent her from learning (and, in the process, bring yourself and your values into disrepute by enforcing them at the point of a blade).

I've spent a long time on college campuses and one thing that is readily apparent is which of the incoming students are capable of exercising judgment and which can't. Almost invariably, the latter group were the most sheltered in their high school years and missed on the opportunity to learn about negative consequences because they were never given the chance to make negative choices. You simply cannot have one without the other.

Fortunately, most colleges (at least in my sample) do a decent job "parenting" the freshman as they get used to the absence of constraints on their behavior and the concomitant requirement that they constrain themselves. It works alright, but it seems preferable to take the training wheels off sooner and more gradually and under the guidance of their actual parents.

PS: Steve, I had the unfortunate pleasure of growing up across the way in HP. My condolences.
6.10.2009 7:49pm
http://volokh.com/?exclude=davidb :

If you are at the point with your children that physical restraint is the only tool left at your disposal, you've already failed miserably.

I sense one of those situations in which ignorance and a judgmental attitude have collided.
6.10.2009 8:13pm
DennisN (mail):
Oren:


There are few things more UNreasonable than a headstrong teen-ager. Sometimes, there is simply no reasoning with them. My daughter was one of them.

And the only was she could have grown out of it was by learning self-control.


And sometimes you just have to wait it out and hope, try to exercise as much control as you can to avoid the larger tragedies.

Making a choice for someone is a crutch that prevents her from learning to make choices for herself.


In general, I agree with that, and it's the way my kids were raised. No cotton wool, here. But you must exercise come control, too. You try to do it with guidance and respect, but sometimes you need to take control. It gets harder even as it hopefully grows less necessary, as they get older.

The fact that parenting is difficult -- teenagers are unreasonable, it is expressly parents' job to teach them reason -- is hardly an excuse not to do it.


You'll get no argument from me, there.

Those moments [of rabid unreasonableness] might even become learning experiences if they were used in a constructive way.


They have to survive them first.

I don't think we have a helluva lot of disagreement, here.
6.10.2009 11:04pm
ReaderY:
I think Proffessor Volokh's point about the probability calculation is well-taken. In order to find the small number of hours that have the greatest impact (and are least disruptive), one has to look at crime per hour within each hour, not just at crime for the "in" hours overall vs. "out" hours overall.

And there are other considerations. After all, traffic accidents cause more fatalities than homocides, but this does not mean that greater attention to and penalities for homocides are unjustified. The typical traffic accident is far less often fatal then the typical homocide or homocide attempt. Moreover, the difference between intentional and accidental behavior involves considerations not completely captured by comparing numeric tallies of fatalities. Preventing intentional fatalities is considered more highly valued than preventing unintentional fatalities.

One difficult with pseudo-quantitative approaches to judicial decision-making is that the value judgments involved, not being quantifiable, tend to get glossed over. Either the judge agrees with the value judgement, in which case he or she will simply incorporate it as an unstated assumption in the statement of the problem, or the judge will disagree, leading to it (as here) not being incorporated, and hence appear to be contradicted, by the numbers the judge's analysis arrives at.
6.10.2009 11:19pm
Bill Johnson (mail):
Let me see if I understand this:

we will curfew a population responsible for 10% of the problem, and ignored the 90%.

Prime governmental thinking.

I say, if the curfew is necessary due to the crime rate, it necessarily must include adults.

Since that won't happen, what again is the reason to curfew the 10%?

Oh yeah, - 'we can, and they can't sue'

oh yeah?
6.11.2009 3:03pm
LarryA (mail) (www):
If you can't explain your positions in logical terms without resorting to force then, ipso facto, you position is without rational merit.
That's why I asked if you've raised teenagers. I can indeed explain my positions "in logical terms." It's getting hormonally-challenged teenagers to listen to and appreciate logical explanations that's the trick.

My youngest daughter, from fifteen to about twenty, was simply convinced that she knew everything and her parents knew nothing. If there was a brick wall between her and what she wanted she had to run into it three times before she would concede it wasn't going to move.

Sometime during her 21st year she discovered that maybe Mom and Dad's experience did count for something and modified her learning style. She's now happily married, productively employed, and dreading the Mother's Curse: "May you have a child just like you."

My main point continues to be that it isn't necessary for parents to screw up to produce a rebellious child. I say that having worked with children where it was parental problems that led to the kid's emotional disturbance.
And the only was she could have grown out of it was by learning self-control. If you have any evidence to suggest that one can teach self-control by imposing external physical constraint, I'm eager to hear it, but it seems to me categorically impossible. Making a choice for someone is a crutch that prevents her from learning to make choices for herself.
Now this I can agree with. What I meant, in the original post, is that with unreasonable teenagers the only way to make them conform to a curfew is by physically confining them. I didn't say it was a good way, and in fact we never locked up our child. (In fact, we took the locks off her bedroom door so it couldn't be locked.)

I was disputing your statement implying that if a teen is out after curfew the parents were "allowing" that behavior.
6.11.2009 3:52pm
DennisN (mail):
LarryA:

"May you have a child just like you."


I remember my father's belly laugh when I complained about something my son had done. Now I get to laugh at the children. Grandparents' revenge is sweet.
6.11.2009 4:32pm
Dan Tobias (mail) (www):
Passing teen curfews to "prevent crime", when most crime is in fact committed by people older than the curfew age and/or outside curfew hours, sounds to me similar to the drunk who searches for his lost keys under the street lamp even though that's not where he actually dropped them; it's where he can easily conduct such a search. Similarly, minors at late hours of the night are a group they can get away with restricting, so they do it whether or not it does any good.
6.11.2009 7:32pm
Desiderius:
Oren,

"Almost invariably, the latter group were the most sheltered in their high school years and missed on the opportunity to learn about negative consequences because they were never given the chance to make negative choices."

As a high school teacher, I can confirm this from the other side. These things go in cycles, but we're definitely near the over-protective extreme.
6.11.2009 11:21pm
East:
Ah, I remember that question from the LSAT.

Apparently they didn't.
6.12.2009 8:17am

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