Opposition Brief — Schleifer ex rel. Schleifer v. City of Charlottesville

Geapwee Vey wwe

(2) FILED

FEB 17 1999

No.- 98-1146

IN THE | oS

Supreme Court of the United States

October Term, 1998

DANIEL SCHLEIFER, a minor by Barry Schleifer, WILLIAM

MCCUTCHEON, a minor by M. Parthenia Monago, his mother,

LISA BRIGGS, a minor by Anne Briggs, her mother, NORA

LALLY-GRAVES, a minor by Mary Ann Lally-Graves, her

mother, JILL LANDERS JAQUITH, a minor by Harry James

Landers, her father; ANNE BRIGGS; HARRY JAMES

LANDERS; and WALDO DAVID LANDERS JAQUITH,

Petitioners,

v.

CITY OF CHARLOTTESVILLE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

John W. Zunka*

414 Park Street

Charlottesville, Virginia 22902

(804) 977-0191

W. Clyde Gouldman, II

City of Charlottesville

P.O. Box 911

Charlottesville, Virginia 22902

(804) 970-3131

Lisa Robertson Kelley

City of Charlottesville

P.O. Box 911

Charlottesville, Virginia 22902

(804) 970-3131

* Counsel of Record

Balmar Legal Publishing, Washington, DC, (202) 682-9800 rAo&

ore oO

TABLE OF CONTENTS

Page

RESPONDENT’S BRIEF IN OPPOSITION ......................2 |

py, SFO geet ot yf, |. mon Enree

THE ORDINANCE AT ISSUE IN THIS CASE ....................

ST AT CF ENS CA ceccrecscecevessvresccessens basanannians 2

REASONS TO DENY A WRIT OF CERTIORARI............... 7

}. THE FOURTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE DECISIONS OF

THE FEW OTHER UNITED STATES COURTS

OF APPEAL WHICH HAVE REVIEWED

JUVENILE CURFEW ORDINANCES. ...............-22:222000 7

a THE FOURTH CIRCUIT’S DECISION IS

CONSISTENT WITH RELEVANT DECISIONS

OF THE SUPREME COURT PERTAINING TO

CHILDREN’S RIGHTS UNDER THE FOUR-

FRR Bn PIII En vcvcerssvvenviervcscncsvenensessesesnveesees 9

3. THE FOURTH CIRCUIT’S DECISION

COMPORTS WITH SUPREME COURT

PRECEDENT ESTABLISHING PARENTS’

RIGHTS OF AUTHORITY WITHIN THEIR

HOUSEHOLDS TO DIRECT THE REARING

CO A SRN nce ditcncacretcnenrccninembctiverniseses 1]

4. THE FOURTH CIRCUIT CORRECTLY

IDENTIFIED AND APPLIED SUPREME

COURT PRECEDENT DEFINING THE CONSTI-

TUTIONAL STANDARDS FOR EVALUATING

THE CLARITY OF LEGISLATION ................2ceeseeeeeees 13

Oe et icnicnscsaatessnceataicikasenimeniobesisenencedpinewnvataretiesndiins mS

Page

APPENDIX

l. Curfew Ordinance, Charlottesville City Code

(1990), as amended, adopted December 16, 1996..... App. |

2. Chart entitled “Reported Offenses per Hour

during Curfew and Non-Curfew Hours from

January 1 - Decembr 31, 1996”. ............ceceseccevess App. 7

3. Chart entitled “Reported Offenses per Hour

during Curfew and Non-Curfew Hours from

sammiary | - ADtl) DU, B99T secercsctveseccsenientinen App. 8

ill

TABLE OF AUTHORITIES

Cases Page(s)

LOWER COURT CASES

Bykojfsky v. Borough of Middletown, 535 F.2d 1245

ARERR ESSE A ee 7, 8, 13

Hutchins by Owens v. District of Columbia,

ee FO CAE, BD isc cvcssesncsccsesseeseassneseereecoenors 8,9

Hutchins by Owens v. District of Columbia, 156 F.3d

I a. seendnesicduuemeenaseensensenecs 8

Hutchins v. District of Columbia, 942 F.Supp. 665,

EE. i,

Johnson v. Opelousas, 658 F.2d 1065 (Sth Cir. 1981) ............ 7

Naprstek v. City of Norwich, 545 F.2d 815

a. sc cuucinsonteensesnnivmeveasereueases 7

Nunez v. City of San Diego, 114 F.3d 935

el a 7,8

Qutb v. Strauss, 11 F.3d 488 (Sth Cir. 1993)................. 7,8, 13

Schleifer by Schleifer v. City of Charlottesville,

iS? F360 $43\(4th Cir. 1998) ................0.:.... i, 2, % 8, 13, 15

Schleifer v. City of Charlottesville, 963 F.Supp.

ES | ce 3, 43,45

Schleifer v. City of Charlottesville, 992 F.Supp.

TA. : ) ea L, 2 a 13, 15

SUPREME COURT CASES

Carey v. Population Svcs. In’l., 431 U.S. 678,

SE a 10

Coates v. Cincinnati, 402 U.S. 611 (1971) cocccccccccccecceccecceecees 14

Colten v. Kentucky, 407 U.S. 104, 110 (1972) oo.ceececccceceeeeee 13

iV

Cases Page(s)

Cox v. New Hampshire, 312 U.S. 569, 574 (1941)... ee 12

Ginsberg v. New York, 390 U.S. 629, 638 (1968)........ 9,11, 12,14

Hodgson v. Minnesota, 497 U.S. 417, 444 ty RE 9,10

Kolender v. Lawson, 461 U.S. 352 (1983)..............4. 10, 13, 14

Meyer v. Nebraska, 262 U.S. 390 (1923) .......::ccceeseeeeeees hayes

Moore v. City of East Cleveland, 431 U.S. 494,

SOG I CIF Bais idinssiseseshceseieniseinvciusdcacensntptiniasinbeicendaaiarwiin 13

New York v. Ferber, 458 U.S. 767, 770-772 (1982)...........++: 14

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) .......-... 10

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ............ 11,13

Planned Parenthood v. Danforth, 428 U.S. 52,

FO CF incsnicenccsecsnatinsardateniotuininentanicenttzerrtavesvencieshrerneoneness 9

Prince v. Massachusetts, 321 U.S. 158, 168

PO sicasescsscsceinnnsescetcalicoulannhsacasliinininasctiaabaenioniai 9,19, 11, 12, 14

Outb v. Bartlett, $11 U.S. 1127 (1994).......00.:ccsseereresssenresooeeres 7

Reno v. Flores, 507 U.S. 292, 302 (1993) ............::ceeeeeeeeeeeees 11

Schall v. Martin, 467 U.S. 253, 264-65 (1984)................ 10, 12

Turner Broadcasting System, Inc. v. FCC, 512

YB, EE, Ge CI scien sicsevcresersttiateinevenetncviesensevatxovenstes 14

United States v. O’Brien, 391 U.S. 367, 377 (1968) ............. 14

Vernonia School District 47J v. Acton, 515 U.S.

OG: BE EI incre ccrperconcntcrtateneeincnencicnensansnisorviianivenvereines 11

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 503 (1982) ..............--.sscceseeeees 14

Ward v. Rock Against Racism, 491 U.S. 781,

Fe Ci icicinnteatievnatvrbcrinctckactninmasintisinrinirectemnmctiarenisesnisines 14

Wisconsin v. Yoder, 406 U.S. 230 (1972).............:00+ it, th 32

RESPONDENT'S BRIEF IN OPPOSITION

Respondent the City of Charlottesville, Virginia

respectfully requests that this Court deny the Petition for a

Writ of Certiorari (hereinafter “Pet. for Writ of Cert.’)

seeking review of the decision of the Court of Appeals for the

Fourth Circuit in this case.

THE LOWER COURT OPINIONS

On April 30, 1997 the United States District Court for

the Western District of Virginia entered an order denying

Petitioners’ motion for preliminary injunctive relief. The

memorandum opinion accompanying that order is reported as

Schleifer v. City of Charlottesville, 963 F.Supp. 534 (W.D.

Va. 1997). On May 20, 1997 the trial court entered on order

denying Petitioners’ request for permanent injunctive relief;

the memorandum opinion that accompanied that order is

reported as Schleifer v. City of Charlottesville, 992 F.Supp.

823 (W.D.Va. 1997). On October 20, 1998 the Court of

Appeals for the Fourth Circuit affirmed the trial court’s

decisions. The Fourth Circuit opinion is reported as Schleifer

by Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir.

1998). The Petitioners have reproduced the contents of each

of these opinions within the Appendix to their Petition for a

Writ of Certiorari.

THE ORDINANCE AT ISSUE IN THIS CASE

The Petition for a Writ of Certiorari submitted by the

Petitioners in this case involves a curfew ordinance applicable

to juveniles, enacted in 1996 by the City Council for the City

of Charlottesville, Virginia. The ordinance is set forth in the

Charlottesville, Va. Code, Section 17-7 (1990 & Supp.

1997)(effective Mar. 1, 1997) and is also set forth verbatim

within the appendix to this Brief in Opposition, at App. | - 6.

‘

STATEMENT OF THE CASE

Petitioners’ Questions Presented state that

Charlottesville’s juvenile curfew ordinance “forbids minors

from leaving their houses” during certain portions of the day.

This characterization distorts the actual wording of the

ordinance. See Appendix to this Brief, at App. 3 - 4. One of

the best summary descriptions of Charlottesville’s curfew

ordinance is found within the Fourth Circuit’s opinion below:

The ordinance does not restrict minors’ activities

that fall under one of its eight enumerated

exceptions. Minors may participate in any activity

during curfew hours if they are accompanied by a

parent; they may run errands at a parent’s direction

provided that they possess a signed note. The

ordinance allows minors to undertake employment

or attend supervised activities sponsored by school,

civic, religious, or other public organizations. The

ordinance exempts minors who are engaged in

interstate travel, are on the sidewalk abutting their

parents’ residence, or are involved in an emergency.

Finally, the ordinance does not affect minors who

are exercising First Amendment rights protected by

the United States Constitution, such as the free

exercise of religion, freedom of speech and the right

of assembly.

Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843,

846 (4th Cir. 1998); Pet. for Writ of Cert., A54.

Within the second of their Questions Presented

Petitioners assert there is no “meaningful evidence” that the

curfew actually serves its objectives. A reading of the record

and opinions of both the court of appeals and the trial court

shows otherwise. The trial court rejected Petitioners’

arguments along these lines, and after a careful discussion of

the “copious” evidence presented, found “a strong evidentiary

nexus between the means chosen by the City and the

articulated government interest.” Schleifer v. City of

a

3

Charlottesville, 992 F.Supp. 823, 826 (W.D.Va. 1998); Pet.

for Writ of Cert., A42. The totality of the evidence

introduced in the trial court clearly establishes that

Charlottesville has experienced a real and significant juvenile

crime problem in recent years. Schleifer v. City of

Charlottesville, 963 F.Supp. 534, 544-45 (Pet. for Writ of

Cert., Al6-A20); Schleifer, 992 F.Supp. at 825-27 (Pet. for

Writ of Cert., A40-A42). As the trial court noted, “The

exhibits reveal considerable and careful deliberation and

extensive research by the City and the proponents of the

curfew law.” Schleifer, 992 F.Supp. at 826 (Pet. for Writ of

Cert., A42). See also the Fourth Circuit’s analysis of the

evidence, Schleifer by Schleifer, 159 F.3d at 848-51 (Pet. for

Writ of Cert., AS7-A64). Each of the courts below

determined that the City’s evidence sufficed to allow the

curfew ordinance to survive constiiutional scrutiny under

either an intermediate or a strict standard of judicial review.

Schleifer by Schleifer, 159 F.3d at 847, 851 (Pet. for Writ of

Cert., A56-A57, A65); Schieifer, 992 F.Supp. at 825, 827

(Pet. For Writ of Cert. A40, A44); Schleifer, 963 F. Supp. at

543 (Pet. For Writ of Cert., A14).

The City recognizes that this Court does not have the

record of the proceedings below before it, and that, therefore,

Petitioners’ references to “J.A.,” the joint appendix prepared

for the Fourth Circuit, see Pet. for Writ of Cert., at 7, et all.,

provide little useful information. However, in response to the

Petitioners’ continued assertions that the lower courts’

decisions in this case are supported by no “meaningful

evidence,” and their argumentative characterizations of what

is demonstrated by the record, the City finds it necessary to

underscore the most important evidence admitted at trial in

the City’s favor. Shouid the Court deem it necessary to

review the evidence in this case, the remaining portion of this

Statement provides page references to the same Fourth Circuit

appendix to which the petitioners have referred.

Charlottesville’s concerns for the welfare and safety of

its community, particularly its youngest citizens, are justified,

4

and this was recognized by the trial court and the Fourth

Circuit, below. The curfew ordinance was a City Council

initiative evaluated and investigated carefully for a period of

at least a year prior to enactment (J.A. 481-482, 520), and

during several public hearings (J.A. 586, 589, 596). The

number of juvenile delinquency cases proceeding to final

judgment in the City’s courts increased by twenty-five percent

during the past six years, (J.A. 56, 149), and this trend was

confirmed by the City’s Commonwealth's Attorney in his

testimony before the trial cowt (J.A. 56-57). An expert

witness for the City, Dr. William Ruefle, testified that

Charlottesville’s trend is consistent with those noted at state

and national levels (J.A. 74-75). One of the most important

pieces of information obtained from City police records is that

the percentage of children of ages 10-16 arrested for crimes in

Charlottesville increased from 1995 to 1996. The police

records document that in 1995, eighty percent of juvenile

arrests for the most serious crimes were of children ages 10-

16 (J.A. 598), and seventy-five percent of the total juvenile

arrests for 1995 were of children ages 10-16 (J.A. 599). In

1996, eighty-five percent of juvenile arrests for the most

serious crimes were of children ages 10-16 (J.A. 600); that

year, eighty-three percent of total juvenile rests involved

children ages 10-16 (J.A. 601).

Juvenile offenses occurring between 11:00 p.m. and 6:00

a.m. increased by thirty-eight percent during 1995, and an

additional ten percent during 1996 (J.A. 574). City police

officers as well as the City’s Commonwealth’s Attorney

confirmed at trial that the most serious crimes being

committed by juveniles within the City are being committed

during hours that fall within the Curfew hours (J.A. 57, 58,

174, 178, 294, 295, 297). The evidence adduced by the City

also proved that certain particularly egregious types of crime

occur at a greater rate of frequency during the late-night hours

Petitioners erroneously state that the curfew was enacted at the

suggestion of the Chief of Police, Pet. for Writ of Cert., at 7.

5

of the curfew than during other hours of the day. Police

incident reports indicate that in 1996: (i) aggravated assaults

were almost one and a half times as likely to occur during

Charlottesville’s curfew hours than other times of day; (ii)

robbery was more than twice as likely to occur during curfew

hours; (i11) forcible rape was more than three times as likely to

occur during curfew hours; and (iv) incidents of drunk driving

were five times more likely to occur during curfew hours than

during non-curfew hours (J.A. 608)(see Appendix to this

Brief, at App. 7). Similar numbers were obtained for January-

April 1997 (J.A. 609)(see Appendix to this Brief, at App. 8).

Following the substantial evidence introduced at trial by

the City, which established a strong nexus between this

ordinance and its objectives, the Petitioners were unsuccessful

in their attempt to disprove or discredit that causal link. They

claim to have provided evidence which proves that “juvenile

crime tends to occur most heavily in the afternoon hours after

school,” Pet. for Writ of Cert., at 7. In support of this claim

they refer the Court to a chart which appears within a

document entitled “Juvenile Offenders and Victims: A

National Report.” (J.A. 456). Similarly, Petitioners claim

that children are victimized by criminal acts primarily during

after-school hours. Pet. for Writ of Cert., at 8; (J.A. 346).

However, a close review of the reports and data upon which

each of these claims is based reveals that the Petitioners

proved no trend applicable anywhere except South Carolina.’

The data to which they refer was collected solely from a South

Carolina record system (J.A. 456, 126). Plaintiffs’ own evidence admits

this data is not nationally representative (J.A. 124). Unfortunately, this

single unproven compilation of information from some jurisdictions in

South Carolina is being cited across the nation as “proof” that, everywhere,

juvenile crime and victimization tend to occur predominantly during after-

school hours. See, e.g., Hutchins v. District of Columbia, 942 F.Supp. 665,

676 (D.D.C. 1996).

)

6

They offered no evidence to verify similar patterns in

Charlottesville.

The chart to which the Petitioners refer the Court plots

the results of a South Carolina study,’ wherein a researcher

reported that juvenile violence occurs with greater frequency

after school than during the hours of a typical curfew (see J.A.

456 and J.A. 113). Two problems render this study suspect.

First, Petitioners’ researcher and the City’s expert witness

agree that the data could be skewed if jurisdictions from

which the data was collected had curfew ordinances in effect,

as one or more South Carolina cities did (i.e., the existence of

curfews could be having a beneficial deterrent affect on

crime, or could be protecting children against greater levels of

victimization, during the hours covered by those curfews) (see

J.A. 85; and see J.A. 390, line 19 through J.A. 391, line 1).

Second, the South Carolina study characterizes simple

assaults (e.g., an after-school fistfight, or the mere threat of a

fistfight, see J.A. 392) as “violent crimes” (J.A. 113).

Petitioners’ researcher conceded that simple assaults are not

considered “violent crimes” by professionals who analyze

crime trends (J.A.391), and excluding simple assaults from

the data analyzed, the South Carolina study actually

documents that, in South Carolina, a larger percentage of

juvenile sexual assaults, robberies, and aggravated assaults

occur late at night, during typical curfew hours, than during

after-school hours (J.A. 113, 392).

The court below wisely focused on the evidence in its

entirety, not just on any single statistic, and determined that

the City of Charlottesville demonstrated a strong nexus

between the curfew ordinance and its objectives. The juvenile

curfew ordinance at issue in this case constitutes a reasonable,

* Indeed petitioners’ researcher considered no Charlottesville-specific

information at all (J.A. 375, 395). Even though analysis of juvenile court

data is his primary professional focus (J.A. 344), this man did not bother

to review Charlottesville’s juvenile court caseload statistics (J.-A. 383).

See footnote 2, supra.

7

constitutional exercise of the City’s authority to enact

legislation to protect the welfare and safety of children.

REASONS TO DENY A WRIT OF CERTIORARI

1. THE FOURTH CIRCUIT’S DECISION IS CONSISTENT

WITH THE DECISIONS OF THE FEW OTHER UNITED

STATES COURTS OF APPEAL WHICH HAVE

REVIEWED JUVENILE CURFEW ORDINANCES.

In 1976 the Court of Appeals for the First Circuit

affirmed a lower court’ decision upholding _ the

constitutionality of a juvenile curfew ordinance similar to

Charlottesville’s. Bykofsky v. Borough of Middletown, 535

F.2d 1245 (3rd Cir. 1976) aff’'g 401 F.Supp. 1242 (M.D. Pa.

1975) cert. denied 429 U.S. 964 (1976). That same year the

Court of Appeals for the Second Circuit declared a juvenile

curfew ordinance void for vagueness, because the ordinance

failed to specify an hour at which the curfew ended. Naprstek

v. City of Norwich, 545 F.2d 815 (2nd Cir. 1976).’ In 1981

the Court of Appeals for the Fifth Circuit invalidated a

juvenile curfew, because the ordinance failed to provide a

sufficient number of exceptions. Johnson v. Opelousas, 658

F.2d 1065 (Sth Cir. 1981). A decade later the Fifth Circuit

upheld a juvenile curfew ordinance almost identical to

Charlottesville’s, which provided a number of exceptions

allowing a variety of nocturnal activities for children. Qutb v.

Strauss, 11 F.3d 488 (5th Cir. 1993) cert. denied sub nom.

Qutb v. Bartlett, 511 U.S. 1127 (1994). Although the Court

of Appeals for the Ninth Circuit recently invalidated a San

Diego curfew ordinance applicable to children, Nunez v. City

of San Diego, 114 F.3d 935 (9th Cir. 1997), that court

indicated that its decision rested on two factors: (1) the San

5

The Second Circuit stated, “This holding is expressly limited to the

constitutional infirmity presented by the lack of a termination time for the

curfew. We express no opinion on the merits of plaintiffs’ other First

Amendment and due process attacks on the curfew ordinance.” Naprstek,

545 F.2d. at 818.

8

Diego ordinance at issue was worded differently than the

ordinance validated by the Fifth Circuit,” and (2) the San

Diego ordinance failed to provide adequate exceptions.

Like Charlottesville’s juvenile curfew ordinance, the

ordinances reviewed in Bykofsky and Qutb carefully balanced

the interests of juveniles, their parents and the locality

enacting the curfew. This balance is reflected in the

numerous exceptions written into the ordinances, allowing a

wide variety of nocturnal activities for children. See Section

17-7(b)(1)-(8) of the Charlottesville City Code, set forth

within the Appendix to this Brief, at App. 3 - 4 and within

Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843,

855-858 (4th Cir. 1998). See also Qutb, 11 F.3d at 496-498;

Bykofsky, 401 F.Supp. at 1246-1247. Furthermore, in each of

these three cases there existed substantial evidence upon

which the reviewing courts could conclude that juvenile

curfews would further the purposes for which they had been

enacted. Schleifer v. City of Charlottesville, 159 F.3d at 849-

851; Qutb, 11 F.3d at 493; Bykofsky, 401 F.Supp. at 1255-56.

It should be noted that the Court of Appeals for the

District of Columbia recently granted a rehearing en banc and

vacated the panel decision in Hutchins by Owens v. District of

Columbia, 144 F.3d 798 (D.C.Cir. 1998). Hutchins by Owens

v. District of Columbia, 156 F.3d 1267 (D.C. Cir. 1998).

Significantly, the decisions in Hutchins to date have turned

* The Ninth Circuit ruled that San Diego’s ordinance was

unconstitutionally vague, because (unlike the ordinance at issue in Qutb or

the present case) the ordinance made it unlawful for minors to “loiter, idle,

wander, stroll or play in or upon the public streets...” Nunez, 114 F.3d at

938.

7

The Ninth Circuit stated, “Clearly, San Diego could have enacted a

narrow curfew ordinance that would pass constitutional muster. _ Its

present ordinance is problematic because it does not provide exceptions

for many legitimate activities...._ In this regard, it is significant that San

Diego rejected a proposal to tailor the ordinance more narrowly by

adopting the broader exceptions used in the ordinance upheld in Qutb.”

Nunez, 114 F.3d at 948-49.

9

upon special circumstances of that case, i.e., the limited

evidence introduced by the District of Columbia prior to the

trial court’s entry of summary judgment. See Hutchins by

Owens, 144 F.3d at 815-16; Hutchins v. District of Columbia,

942 F.Supp. 665, 675-679 (1996).

2. THE FOURTH CIRCUIT’S DECISION IS CONSISTENT

WITH RELEVANT DECISIONS OF THE SUPREME

COURT PERTAINING TO CHILDREN’S RIGHTS

UNDER THE FOURTEENTH AMENDMENT.

By stating that this Court has “never before addressed

the constitutionality of an indefinite, non-emergency curfew,”

Pet. For Writ of Cert. at 11, petitioners neglect the most

significant aspect of the case at hand: this case involves a

curfew ordinance enacted to promote the welfare and safety

of children. Lower courts have ample guidance as to how to

analyze the constitutionality of such legislation.

First, the Court long has recognized that the state has

“broader authority to regulate the activities of children than of

adults.” Planned Parenthood v. Danforth, 428 U.S. 52, 74

(1976). This is particularly true with respect to the public

activities of children. See Ginsberg v. New York, 390 US.

629, 638 (1968); Prince v. Massachusetts, 321 U.S. 158, 168

(1944). Furthermore, precedent confirms that legislation

which touches upon important liberty interests of children is

justified by a strong governmental interest in the welfare and

safety of children:

“{The] state’s assertion of authority [to protect the

welfare of children]...is no mere corporate concern

of official authority. It is the interest of youth itself,

and of the whole community, that children be both

safeguarded from abuses and given opportunities

for growth into free and independent well-

developed men and citizens.”

Prince, 321 U.S. at 165. See also Hodgson v. Minnesota, 497

U.S. 417, 444 (1990) (“The state has a strong and legitimate

interest in the welfare of its young citizens, whose

10

immaturity, inexperience, and lack of judgment may

sometimes impair their ability to exercise their rights

wisely.”); Schall v. Martin, 467 U.S. 253, 264-65 (1984)

(confirming that protecting a child and society from the

child’s criminal acts is a legitimate and compelling

governmental interest). Certainly the laws at issue in the

cases cited above implicated liberty interests no less weighty

than those touched upon by this curfew ordinance. The cases

in which the Court has reviewed legislation regulating a

child’s ability to obtain an abortion are illustrative, because

they confirm that the Court will review legislation regulating

a child’s activities with scrutiny less stringent than would be

applied to a review of the same activities of an adult. See,

e.g., Hodgson, 497 U.S. at 448; Carey v. Population Svcs.

In’l., 431 U.S. 678, 693 (1977).

Petitioners cite to cases such as Kolender v. Lawson, 461

U.S. 352 (1983), and Papachristou v. City of Jacksonville,

405 U.S. 156 (1972), to advance an argument that a law

restricting a person’s movement in any way should be

subjected to the strictest judicial scrutiny. Aside from the fact

that those cases were not analyzed by the Court in an Equal

Protection context, they made reference to the liberty interests

of adult citizens, not children. Juvenile curfew ordinances

like Charlottesville’s regulate only a child’s interest in

remaining unaccompanied on City streets late at night, and the

Court has repeatedly confirmed that such rights of self-

determination, for children, are limited. “It is true children

have rights, in common with older people, in the primary use

of highways. But even in such use streets afford dangers for

them not affecting adults.” Prince, 321 U.S. at 169. In

Schall v. Martin, the Court stated,

The juvenile’s countervailing interest in freedom

from institutional restraints, even for the brief time

involved here, is undoubtedly substantial. . . . But

that interest must be qualified by the recognition

that juveniles, unlike adults, are always in some

form of custody.... Children, by definition, are not

1]

assumed to have the capacity to take care of

themselves.

467 U.S. at 265. In 1993 the Court again indicated that,

because children are always in some form of custody, they

cannot simultaneously be said to have a fundamental right to

come and go at will. See Reno v. Flores, 507 U.S. 292, 302

(1993). In Vernonia School District 47J v. Acton, 515 U.S.

646, 654 (1995) the court recently stated, “Traditionally at

common law, and still today, unemancipated minors lack some

of the most fundamental nghts of self-determination-including

even the right of liberty in its narrow sense, i.e., the nght to come

and go at will.”

To the extent that some lower courts may be scrutinizing

juvenile curfew ordinances more critically than applicable

Supreme Court decisions require, their approach works in

favor of individual constitutional rights. Particularly in this

case, where the trial court and the court of appeals each

determined that the City’s evidence would suffice to justify

Charlottesville’s ordinance even under the strictest judicial

scrutiny, this Court need not grant a writ of certiorari to revisit

principles articulated consistently from Prince through

Vernonia.

3. THEFOURTH CIRCUIT’S DECISION COMPORTS WITH

SUPREME COURT PRECEDENT ESTABLISHING

PARENTS’ RIGHTS OF AUTHORITY WITHIN THEIR

HOUSEHOLDS TO DIRECT THE REARING OF THEIR

CHILDREN.

Certainly it has long been recognized that there is a

private realm of family life which the state may not enter, see

Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v.

Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska,

262 U.S. 390 (1923). See also Wisconsin v. Yoder, 406 U.S.

230 (1972); Ginsberg v. New York, 390 U.S. 629 (1968). Yet

even while recognizing parental rights in this regard, the

Court has cautioned parents, “the very concept of ordered

liberty precludes allowing every person to make his own

12

_

standards on matters of conduct in which society as a whole

has important interests.” Yoder, 406 U.S. at 215-16. Cf.

Ginsberg, 390 U.S. at 640 (“the state also has an independent

interest in the well-being of its youth.”); Prince, 321 U.S. at

166 (“... the family itself is not beyond regulation in the

public interest.”’).

Undeniably, Charlottesville has important and

compelling interests in protecting its community from crime.

Schall v. Martin, 467 U.S. 253, 264 (1984). The City also has

an important interest in promoting the safety and well-being

of citizens upon its public streets, see e.g., Cox v. New

Hampshire, 312 U.S. 569, 574 (1941). Furthermore,

legislatures have historically been regarded by this Court as

having a wide range of authority to limit parental authority in

matters affecting a child’s welfare, particularly with respect to

the public activities of the child. Ginsberg, 390 U.S. at 640;

Prince, 321 U.S. at 167. This broad authority remains valid

even though the exercise of that authority may extend into

areas where parents have a corresponding responsibility to

supervise and protect their children, see Ginsberg v. New

York, 390 U.S. at 640. Where the public activities of children

are at issue, if a legislative body may reasonably conclude

that those activities might be harmful to children then

legislation enacted to protect the children falls within the

lawful authority of the state. Ginsberg, 390 U.S. at 640

(“[T]he knowledge that parental control or guidance cannot

always be provided and society’s transcendent interest in

protecting the welfare of children justify reasonable

regulation of the sale of [sexually explicit] material to

them.”’); Prince, 321 U.S. at 169 (“Legislation appropnately

designed to reach such evils [dangers of the streets] is within

the state’s police power, whether against the parent’s claim to

control of the child or one that religious scruples dictate

contrary action.”).

The interests asserted by the parents within this lawsuit are

clearly unequal in weight to the intensely personal lifestyle

choices identified in the Supreme Court decisions where private,

13

familial interests were held to prevail over the public interests at

stake. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494,

504-506 (1977); Yoder, 406 U.S. at 234-236; Pierce, 268 U.S. at

532-35; Meyer, 262 U.S. at 400-03. Where, as in this case, a

juvenile curfew ordinance regulates only the unsupervised public

activities of children during a few late-night hours, the guidance

already provided by this Court suffices to inform lower courts as

to how to balance the parental and community interests implicated

by the ordinance. Since the Fourth Circuit and the trial court each

correctly identified and considered applicable Supreme Court

precedent, there is no need to grant a wnit of certiorari to review

this decision. See Schleifer by Schleifer v. City of Charlottesville,

159 F.3d 843, 852-53 (1998)(Pet. For Writ of Cert., at A66-A68);

Schleifer, 992 F.Supp 823, 827 (W.D. Va. 1997)(Pet. For Writ of

Cert. at A45-A46); Schleifer, 963 F.Supp. 534, 546-47(W.D. Va.

1997)\(Pet. For Writ of Cert., at A21-A24).

4. THE FOURTH CIRCUIT CORRECTLY IDENTICIFD

AND APPLIED SUPREME COURT PRECEDENT

DEFINING THE CONSTITUTIONAL STANDARDS FOR

EVALUATING THE CLARITY OF LEGISLATION.

The void-for-vagueness doctrine requires that a penal

ordinance must be written with sufficient definiteness that

ordinary people can understand what conduct is prohibited by

the ordinance. Kolender v. Lawson, 461 U.S. 352, 357

(1983). Furthermore, the language of the ordinance must not

encourage arbitrary enforcement. /d. The arguments advanced

by the petitioners, attacking the First Amendment protections built

into this ordinance, would have this Court abandon one of the

principal tenets of the vagueness doctrine: that the doctrine does

not “convert into a constitutional dilemma the practical difficulties

in drawing criminal statutes both general enough to take into

account a variety of human conduct and sufficiently specific to

provide fair warning that certain kinds of conduct are prohibited.”

Colten v. Kentucky, 407 U.S. 104, 110 (1972).

Charlottesville’s juvenile curfew ordinance, like the

ordinances at issue in Bykofsky v. Borough of Middletown,

535 F.2d 1245 (3rd Cir. 1976) and Qutb v. Strauss, 11 F.3d

14

488 (Sth Cir. 1993), provides an exception from criminal

liability for children who choose to exercise First Amendment

rights during the hours of the curfew. Furthermore, even

anticipating that a police officer may occasionally +e

mistaken about whether or not a particular activity falls within

the First Amendment exception, there is nothing inherent in

the language of the curfew ordinance which requires such a

result. In these two aspects, juvenile curfew ordinances like

Charlottesville’s differ in content and effect from the laws

struck down in Kolender v. Lawson, 461 U.S. 352 (1983) and

Coates v. Cincinnati, 402 U.S. 611 (1971). Speculation

anticipating mistakes by police officers in hypothetical

situations will not defeat an ordinance. See Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US.

489, 503 (1982).

If juvenile curfew ordinances such as Charlottesville’s

have any effect upon the exercise of First Amendment

freedoms by children, they reasonably affect only the time,

place or manner of juvenile expression. Because the breadth

of an ordinance must be judged in relation to its plainly

legitimate sweep, an ordinance must be substantially

overbroad before it may be invalidated on its face. New York

v. Ferber, 458 U.S. 767, 770-772 (1982). Only conduct, not

speech, is involved here. The restrictions established by the

curfew ordinance are justified by community concerns for the

welfare and safety of children, even if children’s First

Amendment liberty interests are infringed upon to some

degree, see Ginsberg v. New York, 390 U.S. 629, 638-40

(1968); Prince v. Massachusetts, 321 U.S. 168, 169 (1944). If

the ordinance regulated speech, which it does not, its

provisions could only be described as content-neutral, and

less than the strictest judicial review would be required.

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662

(1994); Ward v. Rock Against Racism, 491 U.S. 781, 791

(1988); United States v. O Brien, 391 US. 367, 377 (1968).

The City demonstrated to the satisfaction of both the trial

court and the court of appeals that the concerns targeted by

this curfew ordinance are real, consistent with the burden

1 ee eee

15

associated with even the strictest standard of judicial review.

Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843,

849-852 (4th Cir. 1998)(Petition for Writ of Cert. at A59-

A66); Schleifer v. City of Charlottesville, 992 F.Supp. 823,

825 (W.D.Va. 1997) (Petition For Writ of Cert. at A40);

Schleifer v. City of Charlottesville, 963 F.Supp. 534, 544-546

(W.D.Va. 1997) (Petition For Writ of Cert. at Al6 - A20).

Where nineteen to twenty hours of each day remain

unaffected by the curfew, and where numerous exceptions

allow children a wide variety of opportunities to engage in

activities protected by the First Amendment during the four to

five hours of curfew, it is clear that Charlottesville’s

ordinance does not exceed the boundaries set by applicable

decisions of this Court.

The courts below each identified and correctly followed

Supreme Court precedent applicable to the issue raised by the

third of Petitioners’ Questions Presented. Schleifer by Schleifer v.

City of Charlottesville, 159 F.3d at 853-54 (Petition for Writ of

Cert., at A68 - A70); Schleifer v. Charlottesville, 992 F.Supp. at

827-29 (Petition for Writ of Cert., at A46 - A49); Schleifer v. City

of Charlottesville, 963 F.Supp. at 548-49 (Petition for Writ of

Cert., at A24 — A28). Accordingly, Petitioners posit no viable

argument that existing Supreme Court precedent fails to provide

adequate guidance, or that the lower courts departed from

established precedent in this case.

CONCLUSION

This case does not merit further review by this Court.

For the reasons advanced above, the City of Charlottesville

respectfully requests the Court to deny a writ of certiorari.

Respectfully submitted,

John W. Zunka*

414 Park Street

Charlottesville, Virginia 22902

(804) 977-0191

l6

W. Clyde Gouldman, I]

City of Charlottesville

P.O. Box 911

Charlottesville, Virginia 22902

(804) 970-3131

Lisa Robertson Kelley

City of Charlottesville

P.O. Box 911

Charlottesville, Virginia 22902

(804) 970-3131

* Counsel of Record

Dated: February 17, 1999

App. |

AN ORDINANCE TO AMEND AND REORDAIN SECTION

17-7 OF CHAPTER 17 OF THE CHARLOTTESVILLE CITY

CODE, 1990, AS AMENDED, RELATING TO A GENERAL

CURFEW FOR MINORS

BE IT ORDAINED by the Council of the City of

Charlottesville, Virginia that:

1. Section 17-7 of the Code of the City of

Charlottesville, 1990, as amended, is hereby amended and

reordained, as follows:

Section 17-7. Curfew for Minors.

The purpose of this section is to: (i) promote the general

welfare and protect the general public through the reduction

of juvenile violence and crime within the City; (ii) promote

the safety and well-being of the City’s youngest citizens,

persons under the age of seventeen (17), whose inexperience

renders them particularly vulnerable to becoming participants

in unlawful activities, particularly unlawful drug activities,

and to being victimized by older perpetrators of crime; and

(iii) foster and strengthen parental responsibility for children.

(a) Definitions.

As used within this section 17-7, the following words

and phrases shall have the meanings ascribed to them below:

“Curfew hours” refers to the hours of 12:01 a.m. through

5:00 a.m. on Monday through Friday, and 1:00 a.m. through

5:00 a.m. on Saturday and Sunday.

“Emergency” refers to unforeseen circumstances, or the

status or condition resulting therefrom, requiring immediate

action to safeguard life, limb or property. The term includes,

but is not limited to, fires, natural disasters, automobile

accidents, or other similar circumstances.

“Establishment” refers to any privately-owned place of

business within the City operated for a profit, to which the

public is invited, including, but not limited to any place of

App. 2

amusement or entertainment. With respect to such

Establishment, the term "Operator" shall mean any person,

and any firm, association, partnership (and the members or

partners thereof) and/or any corporation (and the officers

thereof) conducting or managing that Establishment.

“Minor” refers to any person under seventeen (17) years

of age who has not been emancipated by court order entered

pursuant to Section 16.1-333 of the Code of Virginia, 1950, as

amended.

“Officer” refers to a police or other law enforcement

officer charged with the duty of enforcing the laws of the

Commonwealth of Virginia and/or the ordinances of the City

of Charlottesville.

“Parent” refers to:

(1) a person who is a minor’s biologica! or adoptive

parent and who has legal custody of a minor (including

either parent, if custody is shared under a court order or

agreement);

(2) a person who is the biological or adoptive parent

with whom a minor regularly resides;

(3) a person judicially appointed as a legal guardian

of the minor; and/or

(4) a person eighteen (18) years of age or older

standing in loco parentis (as indicated by the

authorization of an individual listed in part(*) (1), (2) or

(3) of this definition, above, for the person to assume the

care or physical custody of the child, or as indicated by

any other circumstances).

“Person” refers to an individual, not to any association,

corporation, or any other legal entity.

“Public Place” refers to any place to which the public or

a substantial group of the public has access, including, but not

limited to: streets, highways, roads, sidewalks, alleys,

avenues, parks, and/or the common areas of schools,

App. 3

hospitals, apartment houses, office buildings, transportation

facilities and shops.

“Remain” refers to the following actions:

(1) to linger or stay at or upon a place; and/or

(2) to fail to leave a place when requested to do so

by an officer or by the owner, operator or other person in

control of that place.

“Temporary care facility” refers to a non-locked, non-

restrictive shelter at which minors may wait, under visual

supervision, to be retrieved by a parent. No minors waiting in

such facility shall be handcuffed and/or secured (by handcuffs

or otherwise) to any stationary object.

(b) It shall be unlawful for a minor, during curfew

hours, to remain in or upon any Public Place within the City,

to remain in any motor vehicle operating or parked therein or

thereon, or to remain in or upon the premises of any

Establishment within the City, unless:

(1) the minor is accompanied by a parent; or

(2) the minor is involved in an emergency; or

(3) the minor is engaged in an employment activity,

or is going to or returning home from such activity,

without detour or stop; or

(4) the minor is on the sidewalk directly abutting a

place where he or she resides with a parent; or

(5) the minor is attending an activity sponsored by a

school, religious, or civic organization, by a public

organization or agency, or by another similar organization or

entity, which activity is supervised by adults, and/or the

minor is going to or returning from such an activity without

detour or stop; or

(6) the minor is on an errand at the direction of a parent,

and the minor has in his or her possession a writing

signed by the parent containing the following

App. 4

information: the name, signature, address and telephone

number of the parent authorizing the errand, the

telephone number where the parent may be reached

during the errand, the name of the minor, and a brief

description of the errand, the minor’s destination(s) and

the hours the minor is authorized to be engaged in the

errand; or

(7) the minor is involved in interstate travel

through, or beginning or terminating in, the City of

Charlottesville; or

(8) the minor is exercising First Amendment rights

protected by the United States Constitution, such as the

free exercise of religion, freedom of speech and the right

of assembly.

(c) It shall be unlawful for a minor’s parent to

knowingly permit, allow or encourage such minor to violate

17-7(b). -

(d) It shall be unlawful for a person who is the owner or

operator of any motor vehicle to knowingly permit, allow or

encourage a violation of 17-7(b).

(e) It shall be unlawful for the Operator of any

Establishment, or for any person who is an employee thereof,

to knowingly permit, allow or encourage a minor to remain

upon the premises of the Establishment during curfew hours.

It shall be a defense to prosecution under this subsection that

the Operator or employee of an Establishment promptly

notified the police department that a minor was present at the

Establishment after curfew hours and refused to leave.

(f) It shall be unlawful for any person (including any

minor) to give a false name, address, or telephone number to any

officer investigating a possible violation of this section 17-7.

(g) Enforcement.

(1) Minors. Before taking any enforcement action

hereunder, an officer shall make an immediate investigation

~ ee Rap en cae Wah art Stl!

App. 5

for the purpose of ascertaining whether or not the presence of

an minor in a public place, motor vehicle and/or

Establishment within the City during Curfew hours is in

violation of 17-7(b).

(A) If such investigation reveals that the presence

of such minor is in violation of 17-7(b), then:

(1) if the minor has not previously been issued

a warning for any such violation, then the officer

shall issue a verbal warning to the minor, which

shall be foliowed by a written warning mailed by

the police department to the rainor and his or her

parent(s), or

(2) if the minor has previously been issued a

waming for any such violation, then the officer

shall charge the minor with a violation of this

ordinance and shall issue a summons requiring the

minor to appear in court (Ref. Va. Code § 16.1-

260(H)(1)). And

(B) As soon as practicable, the officer shall:

(1) release the minor to his or her parent(s); or

(2) place the minor in a temporary care facility

for a period not to exceed the remainder of the

curfew hours, so that his or her parent(s) may

retrieve the minor; or

(3) if a minor refuses to give an officer his or

her name and address, refuses to give the name and

address of his or her parent(s), or if no parent can be

located prior to the end of the applicable curfew

hours, or if located, no parent appears to accept

custody of the minor, the minor may be taken to a

nonsecure crisis center or juvenile shelter and/or

may be taken to a judge or intake officer of the

juvenile court to be dealt with in the manner and

pursuant to such procedures as required by law.

App. 6

(Ref. Va. Code § 16.1-260(H)(1); 16.1-278.6; §§

16.1-241(A)(1)).

(2) Others. If an investigation by an officer reveals that

a person has violated 17-7(c),(d) and/or (e), and if the person

has not previously been issued a warning with respect to any

such violation, an officer shall issue a verbal warning to the

person, which shall be followed by a written warning mailed

by the police department to the person; however, if any such

warning has previously been issued to that person then the

officer shall charge the person with a violation and shall issue

a summons directing the person to appear in court.

(h) Each violation of this section 17-7 shall constitute a

Class 4 Misdemeanor.

2. Within one year after the effective date of March 1,

1997 of this ordinance, the City Manager shall review this

ordinance and report and make recommendations to the City

Council concerning the effectiveness of and the continuing

need for the ordinance. The City Manager’s report shall

specifically include the following information: (a) the

practicality of enforcing the ordinance and any problems with

enforcement identified by the Police Department, (b) the

impact and cost of the ordinance, (c) other data and

information which the Police Department believes to be

relevant in assessing the effectiveness of the curfew

ordinance; and (d) information from citizens regarding

whether the ordinance has been administered and enforced

fairly, including information regarding the age, gender and

race of those charged or detained under the ordinance.

3. This ordinance shall be effective on March 1, 1997,

at 12:01 a.m.

Approved by City Council on December 16, 1996

s/ Jeanne Cox

Clerk of Council

ee ae

Se ee a

Reported Offenses per Hour

during Curfew and Non-Curfew Hours App. 7

from January 1 - December 31, 1996*

# Offenses in q

Curfew Hours

DUI 86 0.04

Aggravated 33 ;

Assault 0.03

Robbery 23 .

Forcible Rape 6 0 02

# Offenses in '

Non-Curfew Hours

DUI 70 0 : 01

Aggravated 100 j Pea

Assault 0

danentnoct aa I DUI Aggravated Assault Robbery Forcible Rape |

Forcible Rape 11

Curfew 0.050 0.019 0.013 0.003

Total Number of |

Curfew Hours 1996 = 1,726 NonCurfewL]| 0.010 0.014 0.006 0.001

Total Number of

Non-Curfew Hours 1996 = 7.058 * Based on data collected from Incident Reports

from Charlottesville Police Department files

Chart Prepared

May 9, 1997

Reported Offenses per Hour

° App. 8

during Curfew and Non-Curfew Hours

from January 1 - April 30, 1997*

0.05

# Offenses in q

Curfew Hours

[bul 25 0.04

| Aggravated 13

Assault

Robbery 8 0.03

| Forcible Rape 2 3

# Offenses in

Non-Curfew Hours 0 ; 02

| DUI 29

| Aggravated 36

| “aon 0.01

| Robbery 13 |

| Forcible Rape a 0 |

DUI Aggravated Assault Robbery Forcible Rape

Total Number of |

Curfew Hours 1997 = 566 Curfew 0.044 0.023 0.014 | 0,003

|

Total Number of NonCurfewL]} 0.012 0.015 0.00 | 0.002

Non-Curfew Hours 1997 = 2,314 |

* Based on data collected from Incident Reports

from Charlottesville Police Department files

Chart Prepared

May 7, 1997