Petition for Writ of Certiorari — Qutb ex rel. Qutb v. Bartlett

Bupreme Court, U.S.

FILED

Y) Y31571APR4 199

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1993

ELIZABETH QUTB, INDIVIDUALLY AND AS NEXT FRIEND OF

SABRINA QUTB, et al.,

Petitioners

Vv.

STEVE BARTLETT, MAYOR OF THE CITY OF DALLAS,

TEXAS, et al.,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

BRUCE ANTON

Bar No. 01274700

BRUCE A. MORROW

Bar No. 14536950

2522 McKinney Avenue, Suite 201

Dallas, Texas 75201

(214) 871-1125

(214) 871-1972 (fax)

TONA TROLLINGER

Bar No. 20236400

12368 Mackey

Overland Park, Kansas 66213

(816) 292-2184

(816) 292-2150 (fax)

EMMETT COLVIN

Bar No. 04633000

RICHARD F. AGUIRE

Bar No. 00936800

4054 McKinney Avenue, Suite 200

Dallas, Texas 75201

(214) 522-1181

(214) 522-1082 (fax)

Attorneys for Petitioners

QUESTIONS PRESENTED

l. Does the Dallas juvenile curfew ordinance improperly delegate

legislative and judicial power to, and vest untoward discretion in,

enforcement authorities so as to operate as an unconstitutional prior

restraint on first amendment rights to freedom of speech, contravening

the First Amendment to the United States Constitution as expounded

in Forsyth County, Georgia, v. Nationalist Movement, __ U.S. ___,

112 S.Ct. 2395, 2401 (1992), and City of Houston, Texas v. Hill, 482

U.S. 469, 466-67 (1987)?

2. Does the Dallas juvenile curfew ordinance so shift the burden

of proving the non-existence of a free speech right and offer such

untimely redress for inevitable restrictions of free speech rights that it

unconstitutionally chills those rights and operates as a prior restraint in

violation of the First Amendment to the United States Constitution as

expounded in Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781 (1988), Elrod v. Burns, 427 U.S. 347

(1975), and Freedman v. Maryland, 380 U.S. 51, 58-60 (1965)?

3. Is the Dallas juvenile curfew ordinance narrowly tailored and

the least restrictive means to advance concededly compelling

governmental interests so as to satisfy the strict scrutiny demanded of

a law that implicates fundamental rights in an equal protection

challenge?

TABLE OF CONTENTS

PARTIES

Page

The participants in the proceedings below were:

QUESTIONS PRESENTED ii

Plaintiffs, Elizabeth Qutb, Sabrina Qutb, James Poe, Alan Poe,

E.L., P. L.,M. B.,C. B., as representatives of a class of persons under PARTIES iil

the age of seventeen and of parents of persons under the age of \

seventeen. TABLE OF AUTHORITIES vi-x

Defendants, Steve Bartlett, Al Libscomb, Chris Luna, OPINIONS BELOW 2

Domingo Garcia, Charles Tardy, Larry Duncan, Donald Hicks, Maitie

Lee Nash, Charlotte Mayes, Glenn Box, Donna Halstead, Paul Fielding, ORDINANCE INVOLVED 2

Max Wells, Jerry Bartos and Lori Palmer in their capacity as City

Council Members of Dallas, Texas; Jan Hart in her capacity as City STATEMENT OF THE CASE 2

Manager of Dallas Texas; William T. %athburn in his capacity a

Police Chief of the City of Dallas, Texas. The Proceedings Below 2

Elaine Hengen-Piper, attorney for the City of El Paso, Texas, 1. The District Court's Decision 2

and Richard Henderson attorney for the city of Fort Worth as Amicus

Curarac 2. The City's Basis For Appeal 3

3. The Fifth Circuit's Opinion 4

4. Motion For Rehearing 4

STATEMENT OF FACTS 5

REASONS FOR GRANTING THE WRIT 6

1. The Fifth Circuit's decision conflicts with 6

decisions of state courts of last resort.

ys The Fifth Circuit's decision conflicts with 9

decisions of other state courts and federal

district courts.

IV

ill

3. The Fifth Circuit's decision implicates important

issues of federal constitutional law that the 16

Court has not settled but should definitively resolve.

Untimely Redress 17

Improper Delegation 18

Shifting the Burden 19

CONCLUSION 20

TABLE OF AUTHORITIES

Allen v. City of Bordentown,

216 N.J.Super. 557 A.2d 478 (1987)

Aptheker v. Secretary of State,

378 US 500 (1964)

Bellotti v. Baird,

443 US 662 (1979)

Bethel School Dist. No.403 v. Fraser,

478 US 675 (1986)

Brinegan v. United States,

338 US 160 (1949)

Brown v. Ashton,

93 Md.App. 25, 611 A.2d 599 (1992)

Bykofsky v. Borough of Middletown,

401 F.Supp. 1242 (M.D.Pa. 1975)

Chase v. Twist,

323 F.Supp. 749 (E.D.Ark. 1970)

City of Eastlake v. Ruggiero,

220 NE 2d 126 (1966)

City of Houston, Texas v. Hill,

482 US 469, 107 S.Ct. 2502 (1987)

City of Maquoketa v. Russell,

484 NW 2d 179 (Iowa 1992)

vl

Page

14,15,16

16

15

18,19

City of Milwaukee v. KF,

145 Wis.2d 329, 426 NW 2d 329 (1988)

City of Seattle v. Pullman,

82 Wash.2d 794,514 P.2d 1059 (1973)

City of Wadsworth v. Owens,

42 Ohio Misc.2d 1, 536 NE 2d 67 (Ohio Mun. Ct. 1987)

Coates v. City of Cincinnati,

402 US. 611 (1971)

Davis v. Justice Court of Pittsburgh Judicial District,

10 Cal. App.3d 1002, 89 Cal Rptr. 409 (1970)

Elrod v. Burns,

110 §.Ct. 2926 (1990)

Ervin v. State.

14 Wis.2d 194, 163 N.W. 2d 207 (1968)

Forsyth County, Ga v. Nationalist Movement.

112 S.Ct. 2395 (1992)

FW /P.B.S., Inc. v. City of Dallas,

110 S.Ct. 596 (1990)

Glover v. District of Columbia,

250 A.2d 556 (1969)

Hagan v. CIO,

307 U.S. 496 (1939)

Hayes v. Municipal Court of Oklahoma,

487 P.2d 974 (1977)

Hodgson v. Minnesota,

110 S.Ct. 2926 (1990)

vil

8,9

15

16

6

19

19

16

15

17

Holladay v. State.

805 SW 2d 464 (Tex Crim App. 1991)

In re Winship,

397 US 358 (1970)

In re Mosier,

59 Ohio Misc. 83, 394 NE 2d 368 (1978)

In the Interest of Doe,

54 Haw. 647, 513 P.2d 1385 (1973)

In re Gault,

387 US 1 (1967)

K.LJ v. State,

491 So.2d 920 (Fla App [Ist Dist.] (1991))

Lewis v. City of New Orleans,

415 US 130,94 § Ct. 970 (1974)

McCollester v. City of Keene,

514 F.Supp. 1046 (D.N_H. 1981)

McKeiver v. Pennsylvania,

403 U.S.528 (1971)

Meyer v. Nebraska,

262 U.S. 390 (1927)

Milwaukee v. Wilson,

96 Wis.2d 11, 291 NW 2d 452 (1980)

Panora v. Simmons,

445 NW 2d 363 (Iowa 1989)

Papachristiou v. Jacksonville,

405 U.S.156 (1972)

vill

19

15

15

13

15

15

People v. Chambers, Waters v. Barry,

66 Ill. 2d 36,360 NE 2d 55 (1976) 9 711 F.Supp. 1125 (D.D.C. 1989) 10,11,12

Pierce v. Society of Sisters, Wisconsin v. Yoder,

268 U.S. $10 (1925) 15 406 U.S. 205 (1972) IS

Riley v. National Federation of the Blind of Younger v. Harris,

North Carolina,Inc., 401 US 37, 91 S.Ct. 746 (1971) 18

487 US 781, 108 S.Ct. 267 (1988) 17

Ruff v. Marshall,

438 F.Supp. 303 (M.D. Ga. 1977) 13

Shelton v. Tucker.

364 US 479 (1960) 10,11

Stanley v. Illinois,

405 U.S. 645 (1972) 15

Thistlewood v. Trial Magistrate for Ocean City

Worcester County,

236 Md. 548, 204 A.2d 688 (1964) 16

United States v. Chalk.

441 F.2d 1277 (4th Cir. 1971) 16

United States v. O'Brien.

391 U.S.367 (1968) 10

United States v. Reese.

93 US 214 (1976) 19

United States v. Sokolow,

490 US 1, 109 S.Ct. 158] (1989) 19

W.J.W. v. State.

356 So.2d 48 (Fla. App. 1978) 15

ix x

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ELIZABETH QUTB, INDIVIDUAL AND AS NEXT FRIEND OF

SABRINA QU7B, et al.,

Petitioners

V

STEVE BARTLETT, MAYOR OF THE CITY OF DALLAS,

TEXAS. et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners Elizabeth Qutb, Sabrina Qutb, James Poe, Alan

Poe, E. L., P. L. (Juvenile) respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of the Court of Appeals for

the Fifth Circuit entered in this proceeding, November 19, 1993, and

rehearing denied, January 4, 1993

OPINIONS BELOW

The opinion of the Fifth Circuit is reported at 11 F3d 488

(Fifth Cir. 1993) and is set out in Appendix B ("App B"). The opinion

of the United States District Court for the Northern District at Dallas

is not reported and is set out in Appendix A.

JURISDICTION

The decision of the Fifth Circuit was entered on November 19,

1993. Jurisdiction of this Court is invoked under 28 U.S.C. Section

1254(1).

ORDINANCE INVOLVED

This case involves an ordinance of the City of Dallas amending

Section 31-33 of Chapter 31 of the Dallas City Code. The ordinance

is contained in Appendix D.

STATEMENT OF THE CASE

The Proceedings Below

This is an injunction action brought by juveniles and their

parents challenging a juvenile curfew ordinance enacted by the City

Council of Dallas, Texas. By agreement the ordinance has not taken

effect. The ordinance was passed by the Dallas City Council on June

12, 1991. A complaint seeking a temporary and permanent injunction

against enforcement of the ordinance was filed on July 3, 1991. Trial

was held on July 22-23, 1991. The ordinance was amended on June 12,

1992. A final hearing was held on July 20, 1992.

Distri rt' isi

On August 10, 1992 the District Court permanently enjoined

the City of Dallas from enforcing the curfew. The Court used a strict

scrutiny analysis because the Court ruled that fundamental rights were

involved. The Court found that the ordinance infringed upon the

juveniles’ freedom of association and the freedom to move about in

public places (locomotion) App. A 19-20.

The Court further found that applying the triparte test

enunciated in Bellotti v. Baird, 443 US 662(1979), the ordinance:

1) failed to establish any peculiar vulnerability of people

under seventeen to engage in crime or become victims of crime. :

2) failed to establish any inability of persons under

seventeen to make critical decisions concerning their exercise of the

freedoms of association and locomotion in an informed, mature manner,

and

3) improperly impinged upon. the parental

dscisionmaking role concerning the rights of persons under seventeen

to exercise freedom of association and locomotion. App. A 20-26.

The Court futher found the City’s data and testimony

concerning the incidence of crime and crime victimization failed to

justify the overly broad ordinance. App. A 32-34. Specifically the

Court found that the City's data showed a statistically inconsequential

occurrence of juvenile crime during curfew hours.

The Court concluded that the ordinance was not adequately

tailored and was not the least restrictive means necessary to achieve the

laudable goal of crime reduction. The Court reasoned that the inherent

vagueness in the "defenses" vested unconstitutionai discretion in law

enforcement authorities. App. A 30-31.

Finally, the Court found, based upon the testimony of the

Police Chief of the City of Dallas, that the ordinance would be applied

selectively. In conjunction with the ordinance's failure to satisfy any

prong of the Bellotti test, the Court concluded that the ordinance

constituted a violation of the equal protection clause of the Fourteenth

Amendment. App. A 35-36.

The City's Basis For Appeal

The City challenged the District Court's decision on several

broad bases:

1) Juveniles have no fundamental freedoms of association

or locomotion,

2) Because fundamental freedoms are not involved, a

strict scrutiny test is not appropriate;

3) The crime data adduced at trial justified the ordinance

under a rational relation test; and

4) The ordinance was constructed in such a manner that

its application, by the use of defenses, could not infringe upon any

recognized freedom.

On November 3, 1993, the Court of Appeals reversed the

District Court in an opinion in which two (2) judges concurred. The

third judge on the panel concurred in the result but not the reasoning of

the majority. The Court discounted the District Court's analysis of

freedom of association but assumed that freedom of locomotion was

fundamental and, therefore, applicd a strict scrutiny test. However, the

Court went on to decide that the City's interest in combating crime and

reducing juvenile victimization rates was of paramount importance and

therefore justified the curtailment of freedoms of association and

locomotion. In reaching its decision the Court specifically declined to

apply a full Bellotti analysis. Instead, the Court reasoned that the

ordinance impinged upon no protected freedoms because the ordinance

was worded in such a way that the officer on the street would not arrest

anyone engaged in an exercise of free speech, religious practices, or

emergency travel. In so doing the Court eschewed any notion that the

"defenses" were defined in such a vague manner so as to preclude

narrow enforcement or that the defenses per se could not protect against

infringement of fundamental rights.

Motion For Rehearing

The Plaintiff Appellees filed a Motion for Rehearing urging the

Court of Appeals to reconsider its Opinion in light of the Texas Penal

Code, which differentiates between enforcement "exceptions" and trial

"defenses". Further, the Plaintiff Appellees finally urged the Court to

reconsider its holding that the defenses made an ordinance narrowly

tailored, pointing out the broad discretion vested in law enforcement

officials and the untimely redress of deprivations of fundamental rights.

Fully, Plaintiff Appellees urged the Panel to conduct a full Bellotti

analysis. This Motion was denied without written opinion on January

4, 1994.

ee ae ee

SORT Ie e er mew

Ges tg

I a Oe

STATEMENT OF FACTS

At trial the City adduced statistics concerning juvenile crime

and victimization rates. Dallas does not keep statistical information

concerning either (i) the number of minors who commit crimes in public

during proposed curfew hours or (ii) the number of Dallas juveniles

who are victims of crime in public during the proposed curfew hours.

The City did adduce proof that juveniles commit 5% or 6% of

all the crime committed in the City during a 24-hour period. A

Statistical survey was run of 2,600 arrests made by the Dallas Police

from January | to May 31, 1992. During this period of time 494

juveniles were arrested during curfew hours. The statistical survey does

not indicate when the underlying crimes were committed. Juveniles

were arrested in public places 316 times out of the 494 occurrences.

Runaways account for 60 of these arrests. Of the remaining 256 arrests

26 (or 8%) involved assaultive offenses.

Tex. Penal Code Section 2.02 reads as follows:

(a) An exception to an offense in this code is so labeled by the

phrase: "It is an exception to the application of ...."

(b) The prosecuting attorney must negate the existence of

an exception in the accusation charging commission of the offense and

prove beyond a reasonable doubt that the defendant or defendant's

conduct does not fall within the exception.

(c) This section does not affect exceptions applicable to

offense enacted prior to the effective date of this code.

Tex. Penal Code Section 2.03 reads as follows:

(a) A defense to prosecution for an offense in this code is

so labeled by the phrase: "It is a defense to prosecution..."

(b) The prosecuting attorney is not required to negate the

existence of a defense in the accusation charging commission of the

offense.

(c) The issue of the existence of a defense is not submitted

to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted

to the jury, the court shall charge that a reasonable doubt on the issue

requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly

labeled in accordance with this chapter has the procedural and

evidentiary consequences of a defense.

REASONS FOR GRANTING THE WRIT

I.

THE FIFTH CIRCUIT'S DECISION CONFLICTS WITH

DECISIONS OF STATE COURTS OF LAST RESORT

Six state courts of last resort have reviewed the

constitutionality of juvenile curfew ordinances; four find the laws

unconstitutional, and two uphold their constitutionality.

In City of Maquoketa v. Russell, 484 N.W.2d 179 (lowa

1992), the lowa Supreme Court recently invalidated a nocturnal

juvenile curfew on federal constitutional gies. The court held, inter

alia, that a juvenile curfew regulation se: %*iricted movement that it

violated the first amendment: "Whenever the First Amendment rights

of freedom of religion, speech, assembly, and association require one

to move about, such movement must necessarily be protected under the

First Amendment." Jd. at 183 (quoting Ervin v. State, 41 Wis.2d 194,

200, 163 N.W.2d 207, 210 (1968)).' By necessarily offering only

untimely redress for violations of first amendment freedoms, the

regulation unconstitutionally burdened these freedoms.

' The court cited with favor a law review article noting the connection between

freedom of movement and first amendment liberties. See Note, "Assessing the

Constitutional Validity of Juvenile Curfew Statutes,” 52 Notre Dame Law. 858, 866

(1977) ("Even if [freedom of movement is] not viewed as a First Amendment right,

if restnctions on movement have a direct or incidental impact on other First

Amendment nghts, more than a rational relation to a legitimate state purpose is

needed to justify the restrictions”), quoted in C itv of Maquoketa, 484 N.W.24d at

183.

Additionally, the court, citing Bethel School Dist. No. 403 v.

Fraser, 478 U.S. 675, 682 (1986), recognized that minors right were

not automatically coextensive with the rights of adults. Even in light

of this difference, the Court held the ordinance was not narrowly

tailored to protect first amendment rights. /d at 186.

In City of Seattle v. Pullman, 82 Wash.2d 794, 514 P.2d 1059

(1973) (en banc), the Washington Supreme Court held a juvenile

curfew ordinance unconstitutional because made “no distinction

between conduct calculated to harm and that which is essentially

innocent.” Jd at 1063. The court distinguished the breadth of the

ordinance before it from that imposed in emergencies to restore public

order, holding that the ordinance sub judice had an insufficient

relationship to its objective. Jd at 1064.

In Hayes v. Municipal Court of Oklahoma, 487 P.2d 974

(Okla. 1971), the Oklahoma Court of Criminal Appeals held

unconstitutional an ordinance that declared unlawful "loiter[ing] or

wander[ing] aimlessly upon or [sic] about the streets. alleys, or other

public highways, or parks” between 12:00 a.m. and sunrise. The court

held that because the ordinance "punish{ed] conduct of an individual

which in no way impinges on the rights or interests of others," it swept

unnecessarily broadly and thereby invaded the area of protected

freedoms. Jd at 978. "The prohibition was “constitutionally infirm

because it does not differentiate conduct calculated to harm and that

which is essentially innocent." Jd. at 979 (internal quotations omitted)

* The court may have overruled sub silentio its decision in Panora v. Simmons,

445 N.W.2d 363 (lowa 1989), in which the court held constitutional a juvenile

curfew ordinance. The Maquoketa court attempted to distinguish its pnor opinion:

“Pivotal to [the] holding was this court's determination that the ‘minor's nght of

intracity travel is not a fundamental right for due process purposes.” Maquoketa,

484 N.W.2d at 182 (quoting Panora, 445 N.W.2d at 364). The Maquoketa court

then found that intracity travel was so integral to the exercise of first amendment

nghts that a fundamental nght was implicated and the statute was constitutionally

infirm. The effect of the latter is to overrule the former. Even assuming the court is

correct, that a night is fundamental under one amendment but not another does not

affect the constitutional analysis.

The court further recognized what the Fifth Circuit did not--

that the ordinance placed unconstitutionally broad discretion in the

hands of its enforcers: "Effective law enforcement does not require that

the citizen on the streets is at the 'mercy of the officers’ whim or

caprice."" Jd. (quoting Brinegan v. United States, 338 U.S. 160, 176

(1949)). The law, the court noted, was inconsistent with the American

system of constitutional government: "It is difficult to reconcile with

traditional American law the jailing of persons by the courts because of

anticipated but as yet uncommitted crimes." Jd. at 980 (internal

quotations omitted).

The Supreme Court of Hawaii held unconstitutional a

municipal curfew ordinance prohibiting persons under 18 years of age

from loitering in public places between 10:00 p.m. and sunrise. The

court noted a Supreme Court trend toward recognizing the full

constitutional rights of minors’ and held the ordinance

unconstitutionally overbroad because it "drew no distinction between

conduct that is calculated to harm and that which is essentially

innocent." Jn the Interest of Doe, 54 Haw. 647, 513 P.2d 1385, 1387

(1973) (internal quotations omitted). The court found that the

ordinance was not narrowly tailored to advance the underlying

governmental interests, holding that "its broad sweep has the effect of

inhibiting otherwise lawful conduct." Jd. at 1388.

The Supreme Court of Wisconsin held a curfew ordinance

constitutional in City of Milwaukee v. K.F., 145 Wis.2d 329, 426

N.W.2d 329 (1988). The court rejected arguments that the ordinance

infringed fundamental rights, relying on the ostensibly augmented

governmental authority to regulate the activities of children. Jd. at 338-

39. The court held that the ordinance, which restricted juvenile activity

for “only” a narrow period of the day and “only” in public places, was

narrowly drawn. Jd. at 339.

The dissent did not argue that a properly drawn ordinance

could be constitutional but questioned the precision of the ordinance

> The court cited AfcKeiver v. Pennsylvania, 403 U.S. 528 (1971), In re

Winship, 397 U.S 358 (1970), and Jn re Gault, 387 US. 1 (1967).

8

ee Jiiatenniitie tae

sub judice. Quoting a Wisconsin case, the dissenter questioned

whether those enforcing or applying the law would be "relegated to

creating their own standards of culpability instead of applying the

standards prescribed in the law." Jd. at 342 (quoting Milwaukee v.

Wilson, 96 Wis.2d 11, 16, 291 N.W.2d 452 (1980)). All the judges,

however, like the Fifth Circuit, seemed unconcerned with the conceptual

problems inherent in enforcing a curfew law in a manner that "chills"

the exercise of protected freedoms and belatedly postpones vindication

of these rights to the time of trial.

The Supreme Court of Illinois rejected a challenge to the

constitutionality of a state curfew, holding that the law was not aimed

at fundamental speech interests protected by the first amendment.

People v. Chambers, 66 Ill. 2d 36, 360 N.E.2d 55, 57 (1976). Like the

Fifth Circuit, the Court brushed aside free speech concerns, holding that

the mere lack of intent to affect free speech interests justified the

Statutory restrictions or negated any restrictions. The court further

found that the assumption that "when a child is at home during the late

night and early morning hours, it is protected from physical as well as

moral dangers," was sufficient to justify what it defined as mere time,

place, and circumstance restrictions. Jd

II.

THE FIFTH CIRCUIT'S DECISION CONFLICTS WITH

DECISIONS OF OTHER STATE COURTS AND FEDERAL

DISTRICT COURTS.

The decision of the Fifth Circuit conflicts with all but one of

the decisions of the United States district courts that have addressed the

issue. Most recently, the United States District Court for the District

of Columbia held unconstitutional a juvenile curfew ordinance identical

in all pertinent respects to the Dallas ordinance. The decisions of the

Fifth Circuit and the District of Columbia district court are remarkably

inversely parallel.

First, while the Fifth Circuit rejected plaintiffs’ argument that

the ordinance as written infringed free speech liberties, the Waters court

found the restriction unconstitutional, even if construed only

(ti—h—h:,_NjVN-- i.

incidentally to impact protected speech interests. "From a First

Amendment perspective, the Court cannot agree that the wholesale

restriction of these juveniles’ right is ‘no greater than is essential’ to

furtherance of the District's interests." Waters, 711 F.Supp. at 1136

(quoting United States v. O'Brien, 391 US. 367, 377 (1968)).4

Secondly, the court reasoned that the law was neither narrowly

tailored nor the least restrictive means of promoting a governmental

interest:

With this Act, . . . the District has chosen to address

[the crippling effects of crime] through means that are

stern to the point of unconstitutionality. Rather than

a narrowly drawn, constitutionally sensitive response,

the District has effectively chosen to deal with the

problem by making thousands of this city's innocent

juveniles prisoners at night in their homes

Waters v. Barry, 711 F Supp. 1125, 1135 (D.D.C. 1989). Unlike the

Fifth Circuit opinion, which seems to hold that, once a compelling

interest is established, any means of enforcement is justified, the court

noted that when the government undertakes to limit fundamental rights,

"it must act gingerly; it must do so in a manner that is narrowly focused

on the harm at hand, as well as sensitive to needless intrusions upon the

constitutional interests of the innocent." Jd (citing Aptheker v.

Secretary of State, 378 US. 500, 508 (1964) (legitimate state end

“cannot be pursued by means that broadly stifle fundamental personal

liberties when the end can be more narrowly achieved") (quoting

Shelton v. Tucker, 364 US. 479, 488 (1960)). The District of

Columbia ordinance did not satisfy this standard:

The Act casts [fundamental] rights aside like so much

* The Court further held that its analysis of the factors enunciated in Bellotti v.

Baird, 443 U.S. 622 (1979), lended further Support to its conclusion that the Act, if

enforced, unconstitutionally would burden first amendment freedoms. Waters, 711

F.Supp. at 1137

10

straw. The Act subjects the District's juveniles to

virtual house arrest cach night without differentiating

either among those juveniles likely to embroil

themselves in mischief, or among those activities

most likely to produce harm. The Act is a bull in a

china shop of constitutional values

Id. at 1134

The court vigorously rejected the precise argument the Fifth

Circuit found pivotal--that the inclusion of exceptions to a violation

causes the ordinance to satisfy the "nexus" requirement of strict

scrutiny

[I}t is what these curfews restrict, and not what they

exempt, that matters most. The Act, even with its

exemptions, prohibits every innocent juvenile in the

District of Columbia from moving about this City as

he or she pleases at night The restriction,

although perhaps by its nature silent, would be

massive

Id. at 1136.° The court agreed that the exemptions were substantial and

constitutionally significant but ruled that the Act "cannot help but

‘broadly stifle’ the fundamental liberty interests of thousands of

perfectly innocent, law-abiding juveniles who live in or who may visit

the District of Columbia." Jd. This determination starkly contrasts

with the conclusion of the Fifth Circuit that the Dallas ordinance is

narrowly tailored and that “any burden this ordinance places upon

minors’ constitutional rights will be minimal." App. B. page 11

* Unlike the Fifth Circuit, the court was unimpressed by evidence of juvenile

cnme. “Although the recent arguments in this Court might suggest otherwise, the

Court remains certain that the number of such innocent juveniles far exceeds the

number of juveniles in this city who might be bent on nighttime crime.” Waters.

711 F.Supp. at 1136

1]

The court further held that the Act violated the equal protection

clause, noting that the distinction between juveniles and non-juveniles

did not even rationally further the objectives, much less bear an intimate

relation to the problem. Simple logic convinced the court that the Act's

restrictions constitutionally were fatal:

In order to reasonably effectuate its ends, the Act

must correctly assume that those juveniles who

currently leave their homes at night to engage in drug

trafficking, or to engage in other illegal, violent

behavior, will be deterred from doing so by the

existence of a curfew law. The naivete of such an

assumption is striking. Virtually everything that the

Act secks to thwart--violence, trade in illicit narcotics-

-is already illegal, and carries sanctions far more

painful than a night of detention. Logic thus suggests

that the only juveniles for whom the Act will likely

have meaning will be those already inclined to obey

the law. When fundamental interests are at stake, this

inversion of anticipated effects renders the Act

constitutionally unacceptable.

\

Id. at 1139.

Finally, the court held that the Act frustrated parental

childrearing roles. Although the court recognized that the traditional

family unit, in which parents exercise control over their children, has to

some extent dissolved, the court noted that parental control still existed

in "many thousands" of families in the District. Jd. at 1137. As to

these families, the court held, the Act "gracelessly arrogates unto itself

and to the police the precious rights of parenthood." Jd. Thus, the Act

frustrates, rather than furthers, the parental role in childrearing. Jd.

The District of New Hampshire twice held a juvenile curfew

ordinance unconstitutional. In 1981, the court held the broad scope of

the restriction was constitutionally intolerable: "[T]he conduct of the

12

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minors not only is blameless under the law, but also may be totally

innocent in nature." McCollester v. City of Keene, 514 F.Supp. 1046,

1052 (D.N.H. 1981), rev'd, 668 F.2d 617 (Ist Cir. 1982) (allegations

of complaint did not show personal stake in controversy necessary to

establish Art. Ill jurisdiction). The court further held that the ordinance

usurped parental rights, noting the existence of many situations within

the purview of the ordinance in which the parent exercised reasonable

control and guidance. Jd. at 1053.

In 1984, the court held that amendments to the ordinance did

not cure its constitutional defects. The court again noted the "broad

range of innocent behavior" that the law criminalized, thereby

infringing rights of personhood and privacy. McCollester v. ( ‘ity of

Keene, 586 F Supp. 1381, 1384 (D.N.H. 1984). The court easily found

that the law impermissibly intruded on parental privacy interest in

family and childrearing. "(The law] neither aids in the discharge of

parental supervision duties nor qualifies as a justified usurpation of the

parental role in a situation where parental control cannot otherwise be

provided.” Jd. at 1386

A Georgia district court easily found that a juvenile curfew

ordinance "quite clearly" burdened, inter alia, free speech rights and

parental privacy. Ruff v. Marshall, 438 F Supp. 303, 306 (M.D. Ga.

1977). The court expressed concern over the necessary breadth of a

blanket curfew provision, holding that such a law could not in any

circumstance be constitutionally permissible. The means selected--the

curfew--simply was not narrowly tailored to effectuate the end:

[C]urfews are constitutionally permissible only where there is some real

and immediate threat to the public safety which cannot be adequately

met through less drastic alternatives and where the curfew itself is

tailored in duration and application so as to meet the specific crisis

without unnecessary infringement of individual liberties.

Id. The court concluded that a curfew regulation could be constitutional

only upon proof of an "immediate and significant threat such as

pervasive rioting and looting." Jd

13

The only district court case to affirm a juvenile curfew

ordinance applied an incorrect level of scrutiny and was decided prior

io this Court's Bellotti decision. In Bykofsky v. Borough of

Middletown, the Court took judicial notice of the “rapidly increasing

crime rate among juveniles" and found a rational relation between the

end sought and the means chosen. Bykofsky v. Borough of

Middletown, 401 F.Supp. 1242, 1255, 1256 (M.D.Pa. 1975), cert.

denied, 429 U.S. 964 (1976). The court failed to recognize that the

ordinance infringed upon rights fundamental to minors, instead

improperly invoking the aegis of the state's police power and parens

patriae role over minors. Jd. at 1257-58.

The court further found that the Borough's notice procedure,

requiring minors to give prior notice of the exercise of a first

amendment right, did not violate the first amendment. Jd. at 1258. The

court noted, however, that the required giving of notice could not be

equated with a prior restraint because no official was empowered to

deny permission. Jd

The Dallas procedure, in contrast, does effect a prior restraint

by allowing enforcement officials unfettered discretion to deny the

exercise of a free speech right. Even under Borough procedure, a law

enforcement official could determine that a minor's conduct did not in

fact encompass free speech and take the minor into custody for

violating the ordinance. Jd. The court mischaracterized this arrest as

“after-the-fact," rather than a prior restraint. Jd. Like the Fifth Circuit,

it failed to perceive that the mere granting of unfettered discretion to

law enforcement officials to determine the exercise of a free speech

right chills the exercise of these rights.

The court, like the Fifth Circuit, further failed to perceive the

breadth of the infringement on constitutionally protected parental

* Even if the court properly judicially notice the increase in crime among

juveniles, it did not, and could not, judicially noticed the relative juvenile crime

problem or the extent of nocturnal juvenile crime. Without some evidence of

nocturnal public juvenile crime and data allowing comparison of daytime, adult, and

non-public crime, the "fact" of which the court took judicial notice is meaningless.

a4

an as Rata Neale id eters ay

Privacy rights. The court reviewed Supreme Court precedent’ and held,

like the Fifth Circuit, that the exceptions minimized the burden. Jd. at

1264. The Bykofsky court failed to recognize that the exacting

demands of strict scrutiny required that the regulation be narrowly

tailored and the least restrictive means of effectuating the end. The

Fifth Circuit paid only lip service to these dictates.

Finally, the Bykofsky court rejected an equal protection

challenge under a rational basis analysis. Jd. at 1264-1266. The court

selected its standard of review on the basis of its prior--and incorrect--

ruling that the ordinance did not impinge on the exercise of any

fundamental liberty.

The Supreme Court denied certiorari over the written objection

of Justice Marshall, joined by Justice Brennan.* Justice Marshall stated

that precedent supported the proposition that freedom of movement was

a fundamental right,’ thus invoking strict scrutiny. Bykofsy, 429 US.

at 964. Marshall further reasoned that a blanket, nonemergency curfew

could not survive constitutional scrutiny. Jd. at 965.

Other courts have reviewed the constitutionality of blanket

curfew provisions; most have declared the laws unconstitutional. See,

¢.g. Brown v. Ashton, 93 Md.App. 25, 611 A.2d 599 (1992); K.L.J. v.

State. 491 So.2d 920 (Fla.App. [Ist Dist.] (1991)); City of Wadsworth

v. Owens, 42 Ohio Misc.2d 1, 536 N.E.2d 67 (Ohio Mun. Ct 1987);

Allen v. City of Bordentown, 216 N.J.Super. 557, 524 A.2d 478

(1987); S.W. v. State, 431 So.2d 339 (Fla. App. 1983); Jn re Mosier.

59 Ohio Misc. 83, 394 N.E.2d 368 (1978): WJ.W. v State, 356 So.2d

48 (Fla. App. 1978). But see City of Eastlake v. Ruggiero, 220 N.E.2d

” Wisconsin v. Yoder, 406 U.S. 205 (1972), Stanley v. Illinois, 405 U.S. 645

(1972), Pierce v. Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska, 262

U.S. 390 (1923).

"Justice White also objected to the denial of certiorari.

*Justice Marshall cited Papachristiou v. Jacksonville, 405 U.S. 156 (1972),

Coates v. City of Cincinnati, 402 US. 611 (1971), and Hagen v. C10, 307 US.

496 (1939).

15

126 (1966) (upholding constitutionality of curfew law). Cf United

States v. Chalk, 441 F.2d 1277 (4th Cir. 1971) (upholding

constitutionality of limited emergency curfew law); Chase v. Twist, 323

F.Supp. 749 (E.D.Ark. 1970) (same), Davis v. Justice Court of

Pittsburg Judicial District, 10 Cal.App.3d 1002, 89 Cal.Rptr 409

(1970) (same); Glover v. District of Columbia, 250 A.2d 556 (1969)

(same); Thistlewood v. Trial Magistrate for Ocean City, Worcester

County, 236 Md. 548, 204 A.2d 688 (1964) (same).

Ill.

THE FIFTH CIRCUIT'S DECISION IMPLICATES IMPORTANT

ISSUES OF FEDERAL CONSTITUTIONAL LAW THAT THE

COURT HAS NOT SETTLED BUT SHOULD DEFINITIVELY

RESOLVE.

Curfew ordinances have proliferated across the nation. See

App. C."° Governmental entitics everywhere view the curfew as a

means of solving the problem of rising crime. The purported solution

is, however, merely an attempt to solve a systematic problem through

an enactment that convicts the innocent, broadly stifles fundamental

liberties and produces a chill over freedom of speech.

The City's curfew ordinance chills the exercise of first

amendment rights and postpones the vindication of those rights until

time of trial. As originally drafted, the curfew ordinance failed to

provide for any hearing at all until three violations had occurred. The

City voluntarily amended the ordinance in 1992. The amendment, on

which the Fifth Circuit's opinion heavily relies, reads as follows:

Before taking any enforcement action under this section, a

police officer shall ask the apparent offender's age and reason

for being in the public place. The officer shall not issue a

'’The list of cities, counties, and states is not definitive. The A.C.L.U. estimates

that at least 1,000 communities across the nation have curfews in place or are

considering enactment. The list was gathered from a solicitation of A.C.L.U.

affiliates and a cursory Nexis search.

16

citation or make an arrest under this section unless the officer

reasonably believes that an offense has occurred and that,

based on any response and other circumstances, no defense in

Subsection (c) is present.

If the presence of these defenses is meant to show the narrow

scope of enforcement, the curfew is fundamentally flawed for three

reasons: the curfew constitutes an unlawful prior restraint on free

speech without timely remedy; the curfew vests an improper amount

of discretion in the officer on the street; and the curfew ordinance

improperly shifts the burden of proof.

UNTIMELY REDRESS

First, as petitioners argued before the District Court,

"defenses" are not "exceptions". Tex. Penal Code §2.03 "Defense"

quite clearly indicates that the exemption must be raised by evidence at

trial. Since the arrest, of necessity, must precede the trial, a defense in

Texas can in no way protect the exercise of fundamental rights except

by deterring police abuse through acquittal. Vindication by an acquittal

at trial can never make the accused whole since his "justifiable" conduct

was pretermitted at an earlier occasion.

This belated relief underscores the inherent tension between

this curfew ordinance and the exercise of fundamental freedoms. What

differentiates this curfew from that legislation which imposes only a

"minimal burden" on fundamental rights is the timeliness of the

hearing. Bellotti v. Baird, 443 U.S. 622. 99 S.Ct. 3035 (1979), and

Hodgson v. Minnesota, 110 S.Ct. 2926 (1990), impose temporal

limitations which, in the context of a nine month pregnancy, cannot

impair the ultimate exercise of the contested right. In fact, the Supreme

Court has emphasized the need for a timely hearing to insure that the

exercise of the fundamental right is not rendered moot by delay.

Bellotti at 3049-50; Hodgson at 2944.

if an enactment does not contain a temporal limitation that

prevents the State from suppressing protected speech without adequate

procedural safeguards, the enactment is invalid because the delay

“compels the speaker's silence". Riley v. National Federation of the

17

Blind of North Carolina, Inc., 487 U.S. 781, 794, 108 S.Ct. 2667,

2680 (1988).

Since even the Fifth Circuit assumed that some fundamental

rights will be impaired, the lack of timely redress precludes a finding

that the curfew's burden in such cases is minimal. In fact, such lost

freedoms are never inconsequential. "The loss of First Amendment

freedom for even minimal amounts of time unquestionably constitute

irreparable injury." Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673

(1975).

IMPROPER DELEGATION

Secondly, the existence of a defense is rarely applied in law

enforcement circles to preclude an arrest. Instead "...[t]he eternal

temptation [is] to arrest the speaker rather than correct the condition

about which he complains." Younger v. Harris, 401 U.S. 37, 65, 91

S.Ct. 746, 787 (1971) (Douglas, judge dissenting). Trial issues, such

as defenses are quite properly left to the court system to decide. Like

the ordinance in City of Houston, Texas v. Hill, 482 U.S. 469, 107

S.Ct. 2502 (1987), this ordinance places too much discretion in the

hands of even well trained police officers to curtail protected freedoms.

As with the "fighting words" Houston ordinance, and as Chief Rathburn

candidly admitted, the curfew "will be enforced only if no other

violation is found." The ordinance is therefore "susceptible of regular

application to protected expression." This type of enforcement has

traditionally been condemned. Jd. at 465 n. 15 and cases cited therein.

The predicted abuse occurs because, typically, the officer is prone to

arrest and, at trial, "the only witnesses will be the police officer and the

youth. All that is required for conviction is the officer's testimony."

This scenario is pregnant with opportunities for abuse. Lewis v. City

of New Orleans, 415 U.S. 130, 135-136, 94 S.Ct. 970, 973 (1974).

Moreover, in district court, the city police department admitted

that it had not worked out its instructions to the "officer on the street"

as to how to enforce the curfew. Therefore, the opinion's conclusion

that the existence of a “defense” is a sufficient protection belies the

reason for the temporary restraining order. There is a substantial

likelihood that the police in enforcing the curfew will cast "too broad a

18

net". Houston 482 US. at 466."' There is a "heavy presumption"

against the validity of enactments that may curtail First Amendment

freedoms. 'n determining the validity of such enforcement, this court

must be wary that an ordinance not delegate overly broad discretion to

the government officials. Forsyth County, Ga v. Nationalist

Movement, 112 S.Ct. 2395, 240] (1992). This curfew constitutes such

delegation.

SHIFTING THE BURDEN

Thirdly, there is a substantial likelihood that a police officer

exercising a "reasonable belief standard will enforce the ordinance in

a broader manner than the courts would permit at trial. A “reasonable

belief” is a much less stringent standard than "probable cause”, which

in turn is a far cry from "reasonable doubt."

Texas and Federal courts have employed the term "reasonable

suspicion" to mean "more than an unparticularized suspicion or hunch,

but considerably less than proof of wrongdoing by preponderance of the

evidence." United States v. Sokolow, 490 US. 1, 109 S.Ct. 1581,

1585 (1989); Holladay v. State, 805 SW. 2d 464, 496

(Tex.Crim.App. 1991).

Ipso facto, the police are authorized to enforce the curfew in a

manner that guarantees that some percentage of the arrests will be

invalid. In any other context, a higher standard of proof would be

required before such "prior restraint" would be tolerated. The curfew

is meant to act as a deterrent; one which deters minors from being in

public places at night. As such, the curfew will act as a prior restraint.

The exceptional nature of the review of ordinances which may regulate

freedom of expression, "is based upon an appreciation that the very

existence of some broadly written laws has the potential to chill the

expressive activity of others not before the court." F W/P._B S., Inc. v.

City of Dallas, 110 $.Ct. 596, 605 (1990).

"It would certainly be dangerous if the legislature could set a net large enough

to catch all possible offenders, and leave it to the courts to step inside and say who

could rightfully be detained...” United States v Reese, 92 U.S. 214 (1976).

19

CONCLUSION

For the reasons stated above, this Court should grant the

petition for a writ of certiorari to the United States Court of Appeals for

the Fifth Circuit and reverse the decision below.

Respectfully submitted,

BRUCE ANTON

Bar No. 01274700

BRUCE A. MORROW

Bar No. 14536950

2522 McKinney Avenue,

Suite 201

Dallas, Texas 75201

(214) 871-1125

(214) 871-1972 (fax)

TONA TROLLINGER

Bar No. 20236400

12368 Mackey

OverlandPark,Kansas662 13

(816) 292-2184

(816) 292-2150 (fax)

EMMETT COLVIN

Bar No. 04633000

RICHARD F. AGUIRE

Bar No. 00936800

4054 McKinney Avenue,

Suite 200

Dallas, Texas 75201

(214) 522-1181

(214) 522-1082 (fax)

Cooperating Attorneys with

the ACLU Foundation of

Texas