Metropolitan News-Enterprise


Friday, February 5, 2010


Page 3


Court of Appeal Rules San Diego Curfew for Minors Unconstitutional


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal yesterday ruled that the City of San Diego’s 10 p.m. to 6 a.m. curfew for minors is unconstitutional.

Applying intermediate scrutiny, Div. One held that the ordinance impinged the right to travel where it did not permit minors to travel to or from exempt activities unless accompanied by an adult.

A minor, identified as “A.G.,” challenged a finding that she violated the curfew after a California Highway Patrol officer stopped her at 1 a.m. in May 2008 on Interstate 8 for speeding. She allegedly told the officer she was trying to arrive home before her parents.

The ordinance exempts emancipated minors and those accompanied by or traveling at the direction of an adult, going to or from work, traveling interstate or involved in an emergency. It also exempts those on a sidewalk abutting their home, attending an official activity supervised by adults and sponsored by a civic organization, or exercising First Amendment rights.

Justice Alex C. McDonald wrote that the ordinance was subject to only intermediate scrutiny because minors’ constitutional rights are subject to greater regulation and control by the state than adults’ rights. However, he said it was more extensive than necessary to serve the government’s interest in preventing crime and victimization because it included “otherwise innocent and legal conduct by minors even when they have the permission of their parents.”

Prior Ordinance

The Ninth U.S. Circuit Court of Appeals struck down the city’s previous curfew in 1997 applying strict scrutiny. Judge Charles Wiggins, since deceased, wrote that the 1947 ordinance making it a crime for anyone under 18 to “loiter, idle, wander, stroll or play” in a public place after 10 p.m. was too vague, unfairly blocked teens from exercising their right to free speech and burdened parents as well as minors by usurping their rights as guardians.

After San Diego Superior Court Judge Laura H. Parsky proceeded to trial over A.G.’s objection that the current ordinance was unconstitutional, A.G. appealed, renewing her objection and arguing that the Legislature—in enacting Welfare and Institutions Code Sec. 625.5, which applies to municipal ordinances imposing curfews on minors—intended cities or counties to first issue a warning citation before treating a minor’s curfew violation as a misdemeanor.

McDonald rejected the latter claim, writing that the section merely requires prior citation notice to parents in the event that the governing body wishes to take advantage of authorization allowing recoupment of law enforcement costs associated with a second violation from a minor or parent.

Addressing the minor’s constitutional claim, the justice declined to “delineate the extent to which an adult’s right to intrastate travel is a ‘fundamental right,’ ” writing that “the critical question is whether a minor has a corresponding right that would require the same restrictive level of scrutiny.”

He explained:

“[M]inors are afforded less freedom of choice than adults with respect to numerous rights, including marriage, labor, voting, or access to First Amendment-protected expression of the ‘adult entertainment’ variety, all of which are (or likely would be deemed) fundamental when exercised by an adult. The inherent differences between minors and adults—specifically the minor’s immaturity, vulnerability, and need for parental guidance—have been recognized by the United States Supreme Court as the basis to justify treating minors differently from adults under the Federal Constitution.”

Intermediate Scrutiny

Nevertheless, the justice said the curfew did not stand up under the lower level of scrutiny, which requires that a law directly advance a substantial government interest in a manner that is not more extensive than necessary to serve that interest.

Focusing on the ordinance’s exemptions, he wrote that it improperly “imposes de facto restrictions on or conditions to the exercise of First Amendment rights (as well as restricting or conditioning the minor’s ability to attend certain official school, religious, or other recreational activities), and it restricts the minor’s ability to engage in activities after 10:00 p.m. in otherwise safe (and potentially supervised) environments without any suggestion that going directly to (or returning directly home from) those locales implicates the juvenile crime and juvenile victimization goals of the ordinance.”

Justices Richard D. Huffman and Gilbert Nares joined McDonald in his opinion.

The case is In re A.G., D053991.


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