Opinion
Cause No. IP99-1528-C-T/G
July 3, 2000
ENTRY DISCUSSING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR CLASS CERTIFICATION
Plaintiffs claim that Indiana's curfew law violates the U.S. Constitution because: (1) it is overbroad in violation of the First Amendment; and, (2) it unlawfully impinges upon the substantive due process right of parents to raise their children without government interference. Plaintiffs also claim that the City of Indianapolis' policy of forcing all minors who are arrested for a curfew violation in curfew sweeps to take breathalyser and urine tests violates the Fourth Amendment. Plaintiffs and Defendants filed cross-motions for summary judgment. Plaintiffs also move the court to certify this cause as a class action. After considering the motions and the submissions of the parties, the court strikes down the curfew law (and the drug and alcohol testing procedures) for the reasons detailed below. But before beginning that discussion, the following observations are made.
Plaintiffs also brought a claim under the Fifth Amendment to the U.S. Constitution, but it has been withdrawn. (Pls.' Mem. in Supp. of Partial Mot. fr Summ. J. at 1.)
Of course, all reasonable people believe that minors should not be roaming the street at all hours of the night. Most reasonable people would also agree that the state has a legitimate interest in maintaining a curfew for minors for their own health and welfare, to aid parents in enforcing the rules set within the family unit, as well as to minimize participation in illegal and/or harmful activities that youths might be tempted to undertake under the cover of darkness, such as vandalism or worse. As laudable as these goals are, the promulgation of a curfew law must also consider that certain things that youths do in public places after the curfew hour are not only legal, but also are strongly protected by the United States Constitution from interference by the state. In the broad sweep of the Indiana curfew law, the public presence of youth is banned not only when they are about at odd hours for illegitimate purposes, or "hanging out" for no purpose at all-youth are also prohibited from being present in public places even if they are doing such innocent things as walking to the corner newspaper box to purchase a paper at the request of a parent. Such a broad sweeping law fails to adequately balance the appropriate public interest in curtailing late night youthful wanderings with protecting constitutional activities during those hours. The Indiana law does allow some breathing room for certain activities (work, school events and religious activities) but it does not allow enough air for other important activities which appropriately can take place after hours, such as political activities. It is the constrictive narrowness of the permitted exceptions to the Indiana curfew law that is its downfall, not the fundamental effort to set reasonable hours for minors. The Constitution would not prohibit a juvenile curfew, as long as the important exercise of powerful First Amendment rights is not unduly cramped by the law. As the discussion of the legal issues below explains, other jurisdictions have successfully promulgated curfews that contain an appropriate deference to First Amendment protections, and there is no doubt that Indiana could do so.
Because of this case, at least for a while, Indiana will not have a valid curfew law to enforce. But this ruling should not be construed as an invitation to all Hoosier youth to run wild through the nights. Indiana law enforcement authorities retain full authority to enforce the substantive laws that prohibit juvenile delinquency, such as vandalism, trespass, underage alcohol consumption, drug use, theft and so on. Indiana parents also retain the right to set and enforce rules within the family unit-including curfews-for their children, and common sense dictates that they will.
And now on to the discussion of why the Indiana curfew law is unconstitutional and why the drug and alcohol testing procedures violate the Fourth Amendment.
These facts are undisputed and represent every fact that has been designated by the parties. Any finding of fact shall be deemed a conclusion of law to the extent necessary.
Indiana has a juvenile curfew law, which is codified at Indiana Code Section 31-37-3-1 et. seq. The state curfew statute makes it unlawful for a child less than fifteen years old to be in a public place after 11:00 p.m. or before 5:00 a.m. any day of the week. See IND. CODE § 31-37-3-3. For minors between the ages of fifteen and seventeen, it is a violation of curfew to be in a public place: between 1:00 a.m. and 5:00 a.m. on Saturday or Sunday; after 11:00 p.m. on Sunday through Thursday; or before 5:00 a.m. on Monday through Friday. See IND. CODE § 31-37-3-2. However, the curfew statute does not apply to a minor who is "(1) accompanied by the child's parent, guardian, or custodian; (2) accompanied by an adult specified by the child's parent, guardian, or custodian; or (3) participating in, going to, or returning from: (A) lawful employment; (B) a school sanctioned activity; or (C) a religious event." IND. CODE § 31-37-3-1. The curfew statute is applied as it is written; there are no legal exceptions other than those which appear in the statute.
Curfew sweeps are a coordinated effort of law enforcement agencies to enforce the curfew law on particular evenings selected mainly through the summer, occasionally during spring break, where a particular area of Indianapolis is chosen to concentrate on and where law enforcement arrest any youth who are out past curfew. The agencies involved in curfew sweeps are the Marion County Prosecutor's Office, the Indianapolis Police Department, the Marion County Sheriff's Department, the Marion Superior Court — Juvenile Division, the Marion County Juvenile Probation Department, and other various smaller law enforcement agencies.
The Marion County Prosecutor's Office made the initial decision to start curfew sweeps after receiving complaints from neighborhood groups about wanting law enforcement to enforce the juvenile curfew law. The Marion County Prosecutor's Office believed that curfew sweeps would be effective in combating the rise in juvenile crime and would increase public awareness of the curfew law.
While statistics obtained by the Marion County Prosecutor's Office show an increase in the number of juvenile referrals throughout the late 1980s and early 1990s, those statistics do not establish whether more juvenile crimes were committed at night or early in the morning as opposed to any other time of the day.
Curfew sweeps began in 1995. Since that time, law enforcement has conducted approximately four to six curfew sweeps each year during the summer months. In 1994, before the advent of curfew sweeps, 664 juveniles were arrested for curfew violations over the summer months. There were a total of 1,161 curfew arrests throughout the year in 1994. In the summer of 1995, there were 259 arrests made during curfew sweeps and a total of 1,495 curfew arrests for the year.
During curfew sweeps from May 30 through August 31, 1996, 225 juveniles were arrested. There were 1,687 curfew arrests for the year. During those 1996 sweeps, 125 or 55% of juvenile arrestees tested positive for drugs or alcohol — 106 for marijuana, 11 for cocaine, and 8 for alcohol.
During curfew sweeps from April through August 1997, 245 juveniles were arrested. There were 1,495 curfew arrests for the year. During those 1997 sweeps, 115 or 47% of juvenile arrestees tested positive for drugs or alcohol — 102 for marijuana, 7 for cocaine, and 6 for alcohol.
During curfew sweeps from April through September 1998, 236 juveniles were arrested. There were 1,706 curfew arrests for the year. During those 1998 sweeps, 113 or 48% of juvenile arrestees tested positive for drugs or alcohol — 84 for marijuana, 10 for cocaine, and 19 for alcohol.
During curfew sweeps from June through August 1999, 147 juveniles were arrested. During those 1999 sweeps, 75 or 51% of juvenile arrestees tested positive for drugs or alcohol — 59 for marijuana, 8 for cocaine, and 8 for alcohol.
Curfew sweeps have occurred in five geographic districts of Marion County: north, south, east, west and downtown. Once a particular district is targeted for a curfew sweep, every juvenile who is out in violation of curfew is arrested. Probable cause to stop an individual for curfew violation exists if the person looks younger than 18 years old. When juveniles are arrested for a curfew violation during a curfew sweep, they are frisked and handcuffed but are not provided with Miranda warnings.
Outside of the curfew sweep context, juveniles who are arrested are transported to the Marion County Juvenile Detention Center for processing. When a youth is arrested for a curfew violation pursuant to a curfew sweep, however, he is transported to a predetermined site located within the district where the sweep is taking place. Juveniles who are arrested during a curfew sweep are transported to the Juvenile Detention Center only if they have an outstanding warrant or if they are currently under court supervision. All others arrested during a curfew sweep are processed at the curfew sweep site. The curfew sweep sites are used instead of the Juvenile Detention Center, in part, so that the community can be involved and because it provides a less threatening atmosphere than the detention center. The sweep sites utilized in the past include churches and schools. Volunteers from the community are present at the curfew sweep site to help process the youth who have been arrested.
After the juveniles are arrested and taken to the predetermined sweep site, they are directed to an intake area where they speak with a person from the Marion County Juvenile Probation Department (hereinafter "Probation"). During intake, the Probation representative asks the child his name, address, telephone number, and also questions the child about the arrest to verify the information contained in the police report.
After the initial intake process, a youth manager, who is under the direction of the Marion Superior Court — Juvenile Division, administers a breathalyser test to the juveniles. A Probation representative notes the result of the breathalyser test on an intake sheet.
The youth manager, or, in the absence of the youth manager, a member of Probation staff escorts each juvenile to the bathroom so that the child can provide a urine sample. The person supervising the child enters the bathroom with the youth, but allows the youth to go into the stall alone to provide the sample. Once the child gives the sample, it is turned over to Probation. The urine sample is tested for marijuana and cocaine.
Probation informs the juveniles at the curfew sweep sites that they must submit to the breathalyser and urine tests and that the tests are not optional. Breath and urine tests are performed without notice to or consent of parents. There is no written protocol as to what would happen if a youth refused to take the breathalyser and urine tests required following an arrest during a curfew sweep.
After the breathalyser and urine tests are administered, the juveniles next speak with community volunteers. The volunteers ask the youth various questions from a questionnaire form. The questions asked of the youth include whether the child's parents like his friends and whether the child would be interested in being contacted by a church, school or youth organization.
Probation contacts the child's parents to notify them of the arrest and to have the parents come to the site to pick up the child. Once parents arrive at the site, they speak with a Probation representative who explains to the parent the child's arrest and that breathalyser and urine tests have been administered. The representative also provides the parent with a document from Chief Juvenile Probation Officer Diane Bennett entitled "Notice to Parent/Guardian." That document informs the parent that breathalyser and urine tests have been administered to the child and that the parent will receive a letter within ten days with the results of the tests.
The document also contains three numbered paragraphs which explain to the parent the various actions that may be taken depending on the child's juvenile history and test results. If the child is arrested for his first curfew violation and tests negative for drugs and alcohol, no action is taken. If a child who is currently on probation is arrested for a curfew violation during a curfew sweep, then a violation of probation will be filed against the child and the child will have to appear in court for a hearing. If the child who is on probation tests positive for drugs or alcohol, Probation may file a probation violation because of the child's use of unlawful substances, but no new drug or alcohol charges would be filed against that juvenile on the basis of a positive test. If a child is arrested for a curfew violation and the child tests positive for drugs or alcohol, Probation notifies the child's parents in writing and requires that the parents attend a meeting at the Probation department. If it is the child's first curfew violation and the test result is positive, Probation offers the child a 90-day diversion program, pursuant to which the child agrees to complete a drug/alcohol assessment within 60 days and to comply with the assessor's recommendation. The parents are provided information about the diversion program when they appear at the Juvenile Probation Department to discuss the child's positive test results.
The 90-day diversion program is a contract where the child neither admits nor denies the curfew violation and, as a result, there is no formal court action. The child agrees to comply with certain conditions, which include completion of a drug/alcohol assessment. No further action is taken if the child completes the diversion program successfully. Upon completion of the diversion program, a permanent record is made which shows that the child completed the diversion program. If the child who has completed the diversion program is arrested again for a curfew violation, he will not be offered the diversion program again. If the child fails to complete the diversion program or fails to comply with the various conditions, Probation has the option to submit the case to the prosecutor for the purpose of filing a formal curfew violation charge against the child. No new drug or alcohol charges would be filed against a child who fails to complete the diversion program successfully. However, the court would be made aware of the positive test result for drugs or alcohol prior to disposition.
The 90-day diversion program is provided at a cost to the child and his parents. The cost varies depending on the age of the child and whether the child resides in Marion County. The charges are as follows: 11 years and under — $30.00; 12 through 14 years — $40.00; 15 through 17 years — $50.00; out of county — $60.00.
A child who is arrested for a curfew violation during a sweep and tests positive for alcohol or drugs may refuse the diversion program and proceed with a fact-finding hearing on the curfew charge. If the child and his parents reject the diversion program, the court would be made aware of the child's positive drug or alcohol test result prior to the court's disposition. If a child has a prior arrest for a curfew violation and tests positive for drugs or alcohol, Probation offers the child a 90-day diversion program. In addition to the diversion program, however, a child with a prior curfew arrest is required to complete not only a drug/alcohol assessment and comply with any recommendations, but must also complete two additional programs — the Joint Community Service Work Project and Parent to Parent Program. The Joint Community Service Work Project "is a community work project where parents and children are assigned to do something in the community as a condition" of diversion. The Parent to Parent Program is a day-long program which educates parents about drugs. A child with a prior curfew arrest may also reject diversion and have a fact-finding hearing. In this situation, the court would be aware of the child's positive test result.
On August 26, 1999, there was a curfew sweep conducted throughout the northern district of Marion County. The processing site for that sweep was Broad Ripple High School. That same night, Colin Hodgkins and three friends stopped to eat at Steak n' Shake near Broad Ripple after attending a school soccer game that ended at 10:00 p.m. Colin Hodgkins was born on August 6, 1983, and was 16 years old at the time. Nancy Hodgkins, Colin's mother, had given Colin permission to attend the game and realized that he would be out past curfew. Ms. Hodgkins allowed Colin to be out past curfew because it was not a school night and Colin is a responsible child.
As Colin and his three friends left Steak n' Shake, they were stopped by Marion County Deputy Sheriffs Kirkbride and Chenowitz. The stop took place just after 11:00 p.m. Deputy Kirkbride placed Colin under arrest for violating curfew and handcuffed him. Colin was then transported to Broad Ripple High School by a Marion County Sheriff's wagon. Colin first spoke with a Probation representative, who asked his name, address, telephone number and facts about his arrest. The following Probation and youth manager staff were present at Broad Ripple High School on August 26, 1999: George Hurd, Elizabeth McElmurry, Yolanda Carey, Shelly Reathaford, Denise Roth, Rochelle Prichard and Cinda Yentz. Colin was told that he must take a breathalyser test. Colin's breathalyser test was negative. Colin was then escorted to the bathroom where he was told he had to give a urine sample. After he produced a urine sample, Colin was asked if he wanted to talk to a person who identified herself as a volunteer. The volunteer asked Colin questions about his friends and family, including whether his family attended church.
At approximately 1:30 a.m., Ms. Hodgkins was contacted by a Marion County Deputy Sheriff about Colin's arrest. The deputy came to the Hodgkins' residence to inform Nancy that she needed to pick up Colin at Broad Ripple High School. When Ms. Hodgkins arrived at Broad Ripple High School, she spoke with a representative from the Juvenile Probation Department, who explained to her that Colin had taken breathalyser and urine tests and that she would receive the results of the test within 10 days. Ms. Hodgkins then spoke with a volunteer who asked her personal questions about her family. Ms. Hodgkins answered the questions but she was offended by them being asked of her.
Colin did not receive any document while he was present at Broad Ripple High School which stated that he had been charged with a crime or which required him to appear in court. Before leaving the sweep site, Mrs. Hodgkins received a Notice to Parent/Guardian document which explained the consequences of a positive drug or alcohol test. Ms. Hodgkins and Colin later received a notice in the mail which stated that Colin's breath and urine tests were negative and that no action would be taken against Colin.
Colin plans to be out in public past curfew in the future to attend Indiana Pacers basketball games, political activities and social events. Ms. Hodgkins and her husband want Colin to be able to participate in political activities, attend Pacers games without them, and drive home from social events past curfew. Colin believes that being forced to take a breathalyser and urine test violates his constitutional rights. Ms. Hodgkins feels that the curfew law impinges upon her ability to raise her children without government interference.
Absent the pending court action, Marion County law enforcement agencies would continue conducting curfew sweeps.
II. First Amendment
Plaintiffs claim that the curfew law is overbroad in violation of the First Amendment to the Federal Constitution. The Fourteenth Amendment imposes the substantive limitations of the First Amendment on the legislative power of the States. See Santa Fe Indep. Sch. Dist. v. Doe, ___ S.Ct. ___, No. 99-62, 2000 WL 775587, at *5 (June 19, 2000).
The traditional rule is that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." New York v. Ferber, 458 U.S. 747, 767 (1982). However, under the overbreadth doctrine, "when statutes regulate or proscribe speech . . . the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.'" Gooding v. Wilson, 405 U.S. 518, 520-21 (1972) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)).
Where the nature of the First Amendment right at issue is expressive conduct, as opposed to pure speech, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973); see also National Endowment of the Arts v. Finley, 118 S.Ct. 2168, 2175 (1998) ("Facial invalidation `is, manifestly, strong medicine' that `has been employed by the Court sparingly and only as a last resort.' To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech.") (quoting Broadrick, 413 U.S. at 613 (1973)).
Indiana's curfew statute is directed at limiting the nighttime activities of minors, not adults. "Minors are `persons' under the United States Constitution, and have fundamental rights which the state must respect." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969). Even if the First Amendment rights of minors are not "co-extensive with those of adults," see id. at 515 (Stewart., J. concurring), minors "are entitled to a significant measure of First Amendment protection. . . ." Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13 (1975); see also Santa Fe Indep. Sch. Dist., ___ S.Ct. at ___, No. 99-62, 2000 WL 775587, at *8 (June 19, 2000) ("[R]eligious activity in public schools, as elsewhere, must comport with the First Amendment."); Tinker, 393 U.S. at 511 (ruling students are persons under Constitution who possess fundamental right of free speech and, thus, can wear black arm bands at school to protest Vietnam war); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (ruling students who were Jehovah's witnesses possess freedom to worship and cannot be compelled by school board to salute flag and pledge allegiance). As the Supreme Court stated in a slightly different context:
Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults. It remains, then, to examine whether there is any significant state interest in [the effect of the statute] that is not present in the case of an adult.
Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 74-75 (1976) (citations omitted) (holding that a blanket parental consent requirement for a minor to obtain an abortion is unconstitutional); see also Bellotti v. Baird, 443 U.S. 622, 633-34 (1979) (four-vote plurality opinion) ("A child, merely on account of his minority, is not beyond the protection of the Constitution. . . . We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing. . . . [O]ur cases show that although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for children's vulnerability and their needs for concern, sympathy, and paternal attention.) (quotation and citations omitted).
The analysis set forth in Bellotti, and the general fact that the rights of minors are not always co-extensive with those of adults, is primarily relevant in determining whether the state has a compelling interest justifying greater restrictions on minors than on adults. See Nunez v. City of San Diego, 114 F.3d 935, 945 (9th Cir. 1997) ("The Bellotti test does not establish a lower level of scrutiny for the constitutional rights of minors in the context of a juvenile curfew. Rather, the Bellotti framework enables courts to determine whether the state has a compelling interest justifying greater restrictions on minors than on adults.") (citations omitted); Qubt v. Strauss, 11 F.3d 488, 492 n. 6 (5th Cir. 1993) ("This [Bellotti] analysis affects the balancing between of the state's interest against the interests of the minor when determining whether the state's interest is compelling. However, given the fact that the parties and the district court all agree that the interest of the state in this instance is compelling, it is unnecessary to conduct a full Bellotti analysis."), cert. denied, 511 U.S. 1127 (1994). As discussed below, there is no doubt that the state's interests in this case are compelling.
Indiana Code § 31-37-3-1 et seq. primarily regulates minors' conduct, not pure speech. To that end, the curfew statute represents a time, place or manner restriction on minors' First Amendment rights in public streets, parks and other traditional public fora. As the Court stated in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983):
Indiana's curfew law, Indiana Code § 31-37-3-1 et seq., is set out at the beginning of this Entry.
In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which `have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' In these quintessential public forums, the government may not prohibit all communicative activity. . . . The state may [however] enforce regulations of the time, place or manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
Id. at 45 (citations omitted); see also Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (same). Therefore, the court's task is to determine whether the curfew law is: (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and, (3) leaves open ample alternative channels of communication. As an initial matter, it is undisputed that the statute is content-neutral.
An argument could be made that the curfew law is not content-neutral because it excepts from its scope minors going to, attending, and coming from a "religious event." By contrast, no similar exception exists for other activities protected by the First Amendment. Therefore, while the statute is clearly viewpoint-neutral, it does "favor" religious expression over political and other expression protected by the First Amendment. The Supreme Court has held that "a regulation that does not favor either side of a political controversy is nonetheless impermissible because the First Amendment's hostility to content-based regulation extends to prohibition of public discussion of an entire topic." Boos v. Barry, 485 U.S. 312, 319 (1988) (quotation omitted). But the general test for "content-neutral" speech restrictions is whether the restrictions "are justified without reference to the content of the regulated speech." Id. at 320 (quotation omitted). As discussed below, Defendants justify exempting religious activities on the grounds that such activities, like school and employment activities, are presumed to be governed by a "responsible entity." Defendants' argument assumes that other activities protected by the First Amendment (such as political or associational activities), will not be governed by "responsible entities." Although, as discussed below, the court does not agree with Defendants' assumption (at least in the absence of any evidence supporting the assumption), it appears that the curfew law's restrictions "are justified without reference to the content of the regulated speech," and therefore is content-neutral.
Defendants claim that Indiana's juvenile curfew law serves the following governmental interests: providing for the safety and well-being of its children, combating juvenile crime, and promoting and supporting the relationships between parents and their minor children. See generally IND. CODE § 31-10-2-1 (listing the general purposes of Indiana's family law statutes). Clearly, the government has "a compelling interest in protecting the physical and psychological well-being of minors." Sable Communications v. FCC, 492 U.S. 115, 126 (1989) (holding that a ban on dial-a-porn is not appropriate for adults, although it might be for minors). Also, the government clearly has a compelling interest in protecting the entire community from crime, including juvenile crime. See Schall v. Martin, 467 U.S. 253, 264-65 (1984) ("The legitimate and compelling state interest in protecting the community from crime cannot be doubted. . . . [C]rime prevention is a weighty social objective, and this interest persists undiluted in the juvenile context. The harm suffered by the victim of a crime is not dependent upon the age of the perpetrator. And the harm to society generally may even be greater in this context given the high rate of recidivism among juveniles.") (quotations omitted). The court may also safely assume that the other posited interest (promoting and supporting the relationships between parents and their minor children), while perhaps less important than the first two, is also very important.
The heart of the dispute is whether the curfew law is narrowly tailored to serve Indiana's significant government interests. In Ward, the Supreme Court addressed this "narrow tailoring" standard:
[T]his standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.491 U.S. at 799-800 (citation omitted); see also Hill v. Colorado, ___ S.Ct. ___, No. 98-1856, 2000 WL 826733, at *13 (June 28, 2000) (same). The Court further explained that "the essence of narrow tailoring" is "focus[ing] on the source of the evils the [government] seeks to eliminate . . . and eliminat[ing] them without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils." See Ward, 491 U.S. at 800 n. 7. After Ward, the Supreme Court has termed this "narrow tailoring" requirement for content-neutral restrictions to be an "intermediate level of scrutiny." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (citing, inter alia, Ward); see also United States v. Wilson, 154 F.3d 658, 664 (7th Cir. 1998) ("Because we find that [the statute] is content- and viewpoint-neutral, it is subject to intermediate scrutiny. A statute survives intermediate scrutiny if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.") (quotation omitted).
Therefore, according to Ward, the issue is not whether Indiana's curfew law is the least restrictive alternative that could adequately serve the government's interests. Instead, the issue is whether "a substantial portion of the burden on speech [caused by the curfew law] does not serve to advance [the curfew law's] goals." Id. at 799. It is clear what speech is burdened by the curfew law: all First Amendment protected activity by minors in a public forum during curfew hours that does not fit within one of the law's three exceptions. For instance, this would include all political associational and protest activity done in a public forum during curfew hours when the minor is not accompanied by a parent or responsible adult appointed by a parent (and even if the minor is accompanied by a parent or designated adult at the event, the minor could not drive or walk home without the parent or adult accompanying him). Thus, the statute makes it unlawful for a seventeen-year-old to attend any political event or meeting by themselves which concludes after 11:00 p.m. on a weekday evening during the summer months. Similarly, it is a curfew violation for a seventeen-year-old to attend and participate in a midnight protest against the death penalty at the State House or attend a late night session of the Indiana General Assembly. The statute also prohibits a fourteen-year-old from participating in a neighborhood association meeting or protest event which takes place on neighborhood sidewalks past 10:00 p.m. on a weekday evening during the summer. It is clear that the curfew statute makes otherwise protected conduct impermissible in a substantial number of situations.
Specifically, the curfew law does not apply to a minor who is:
(1) accompanied by the child's parent, guardian, or custodian;
(2) accompanied by an adult specified by the child's parent, guardian, or custodian; or
(3) participating in, going to, or coming from:
(A) lawful employment;
(B) a school sanctioned activity; or
(C) a religious event.
IND. CODE § 31-37-3-1. It is undisputed that Indiana's curfew law is applied as written and there no exceptions other than those which appear in the text of the statute.
The inquiry becomes how much of this burden on speech serves to advance the curfew law's goals. It is here where Defendants run into a problem. The record contains no evidence indicating that the curfew law serves to advance any of the law's goals. Based upon the state of this record, the court can only conclude that the legislature crafted and enacted the law using nothing but "common sense" or "common knowledge" or perhaps, "intuition", as its guide. At oral argument, the City's counsel (who argued on behalf of all Defendants) admitted as much. The Defendants have had a full opportunity to supplement the record, and no Defendant has indicated that there exists any relevant evidentiary materials that are not in the record.
There is no published legislative history of the curfew law, and with the exception of the legislature's general statement of goals behind its entire body family law provisions, see IND. CODE § 31-10-2-1, there is no evidence (other than counsel's assertions) of the purpose(s) behind the curfew law in particular.
Also, Defendants have produced no evidence that there was, at the time the law was enacted, a significant problem in Indiana of juvenile crime, juvenile victimization, or with breakdowns in parent (or guardian)-child relationships. Defendants do produce evidence of a drug/alcohol "hit rate" of approximately 50% for minors arrested for curfew violations during curfew sweeps — of course these sweeps occurred only after the curfew law was enacted. This disturbing evidence certainly demonstrates that there is a problem with juvenile alcohol and drug use in Marion County (although the statute applies statewide). It is, however, ironic that the only evidence Defendants rely upon — the 50% hit rate — are the results of (as is discussed below) illegal searches.
More importantly, despite the fact that the curfew law has been actively enforced for six years, Defendants produce no evidence indicating that the law has had in the past, or will likely have in the future, any success in furthering the legislature's goals (whatever they might precisely have been) in enacting the law.
As an initial matter, adjudicating constitutional issues on the basis of nothing more than "common sense" or "common knowledge" or "intuition" is a dubious proposition. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. ___, 120 S.Ct. 897, 907 (2000) ("We have never accepted mere conjecture as adequate to carry a First Amendment burden. . . ."); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) ("When the Government defends a regulation on speech as a means to address past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.") (quotation omitted) (four-Justice plurality opinion); id. at 666 ("This obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.") (citation omitted) (emphasis added) (four-Justice plurality opinion); cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986) ("The First Amendment does not require a city . . . to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses."). And indeed, in every reported federal case in which a curfew law has withstood constitutional challenge, the government has produced substantial evidence supporting its law. See Hutchins v. District of Columbia, 188 F.3d 531, 542-44 (D.C. Cir. 1999) (en banc); Schleifer v. City of Charlottesville, 159 F.3d 843, 849-51 (4th Cir. 1998), cert. denied, 526 U.S. 1018 (1999); Qubt v. Strauss, 11 F.3d 488, 493 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994); Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1255-56 (M.D.Pa. 1975), aff'd mem., 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964 (1976); Ramos ex rel. Ramos v. Town of Vernon, 48 F. Supp.2d 176, 185 (D.Conn. 1999); cf. Nunez v. City of San Diego, 114 F.3d 935, 947-48 (9th Cir. 1997) (discussing evidence offered supporting the law, but concluding that the law is unconstitutional on other grounds).
Although some of these cases emphasize that the government is not required to submit proof to a scientific certainty concerning the efficacy of the curfew law in achieving its aims, see Schleifer, 159 F.3d at 850; Qutb, 11 F.3d at 493; Ramos, 48 F. Supp.2d at 185, there is a vast gulf between proof to a scientific certainty and no proof whatsoever. Defendants do not make this argument, but it is possible that the Indiana General Assembly relied upon the statistics set out in the above curfew law cases in passing Indiana's curfew law. That possibility is addressed below.
But even if the court accepts the "common sense" notion that unsupervised minors in public are especially prone (that is, more prone than adults) to get involved in criminal activity (either due to their own criminal behavior or as the victims of others' criminal behavior) during curfew hours, that notion only justifies the overall imposition of the curfew law. As discussed above, the specific inquiry here is whether the curfew law's burden on speech serves to advance the curfew law's goals. The court may be willing to accept, without supporting evidence, that unsupervised minors "hanging out" in parking lots or aimlessly cruising city streets may be susceptible to become involved in criminal behavior; but the court is not prepared to accept, without supporting evidence, that the same is true of such activities as unsupervised minors watching a late-night General Assembly session or participating in a candle-light vigil in front of the Governor's mansion on the night of an execution. "Common knowledge", unsupported by substantiating evidence, can only take the Defendants so far. And Defendants' evidence that approximately 50% of the minors arrested during curfew sweeps tested positive for drugs or alcohol do not further Defendants cause because there is no evidence that any of the positive results came from minors arrested while engaged in First Amendment protected activity.
A look at the curfew law's three exceptions only strengthens the conclusion that "common sense" does not support that view that the curfew law's burden on First Amendment protected activity is necessary to effectuate the purposes of the law. A seventeen-year-old, alone or with other minors, may attend and travel from a high school football game ("a school sanctioned activity") that ends during the curfew hours. That seventeen-year-old, alone or with other minors, may attend and travel from a Billy Graham speech at the RCA Dome ("a religious event") that ends during the curfew hours. That seventeen-year-old, alone or with other minors, may also travel from a job at a fast-food restaurant ("lawful employment") that ends during the curfew hours. The curfew law exempts these activities, even if the minor(s) is unsupervised during the activity and while traveling to and from the activity. According to Defendants, the rationale behind these exceptions is that a "responsible entity" (i.e., a school, religious entity, or employer) is presumed to supervise the minor(s) during the activity. (No explanation is given for why the law also permits minors to travel to and from these three types of activities alone or only with other minors.) No evidence is offered to support these exceptions — for instance there is no showing that unsupervised minors coming and going from and/or attending the excepted activities would be any less likely to be in the 50% of unsupervised minors who tested positive for drugs or alcohol during the curfew sweeps. But for the purposes of argument, the court will accept that "common sense" says that the "responsible entity" rationale is sound.
It is worth noting that the curfew law does not appear to require the minor to be traveling home from the excepted activity — presumably, he may travel unsupervised from the excepted activity to any nonpublic place.
But to the extent this "responsible entity" rationale is sound, then "common sense" would say that many First Amendment protected activities which are not covered by the curfew law's exceptions also fit within the "responsible entity" rationale. For instance, a seventeen-year-old may not attend, or travel to and from, either alone or with other minors, a late-night General Assembly Session, the Mayor's election-night victory rally, a candlelight vigil protesting an execution, a late-night neighborhood association meeting, or any other First Amendment protected associational or political activity that ends by the start of the curfew hours. Many, if not most, political and associational meetings are organized by responsible entities which could be presumed to supervise minors at least to the same extent that a school supervises minors at a football game or a religious organization supervises minors at a religious event. Therefore, "common sense" does not alone meet Defendants' burden to show that the burden on speech caused by the curfew law serves to materially advance the curfew law's goals.
Both in their briefs and at oral argument, counsel for the parties discussed the cases which have considered the constitutionality of nocturnal juvenile curfew laws. As noted above, all of these cases mention, to varying degrees, the government's use of statistics and other evidence to justify the passage of the curfew law. Although the Defendants in this case do not rely upon this argument, perhaps the Defendants could justify the curfew law's burden on protected speech by pointing to these other curfew law cases. But far from helping the Defendants' position, a review of all of the relevant curfew law cases emphatically reveals the importance of a broad exception for all First Amendment protected activities.
Five federal circuit court cases have examined the constitutionality of nocturnal juvenile curfew laws. See Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999) (en banc); Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998), cert. denied, 526 U.S. 1018 (1999); Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997); Qubt v. Strauss, 11 F.3d 488 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994); Johnson v. City of Ophelousas, 658 F.2d 1065 (5th Cir. 1981). Of these five cases, two held that the curfew laws at issue were unconstitutional as overbroad in violation of the First Amendment. See Nunez, 114 F.3d at 951; Johnson, 658 F.2d at 1074. Neither ordinance struck down as overbroad contained any exception for minors engaging in legitimate First Amendment activities.
In another circuit court case, the Third Circuit affirmed the district court's holding as to the constitutionality of a curfew law without publishing its opinion in a reporter or in an electronic database. See Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (M.D.Pa. 1975), aff'd mem., 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964 (1976). In Naprstek v. City of Norwich, 545 F.2d 815 (2d Cir. 1976), the court considered a juvenile curfew law, but found it unconstitutional on a ground not applicable to the present case. See id. at 818 (striking down a curfew for vagueness because it did not specify the time each day that the curfew ended).
The San Diego ordinance in Nunez did not apply in the following circumstances:
(1) when the minor is accompanied by his or her parents, guardian, or other adult person having the care and custody of the minor,
(2) when the minor is upon an emergency errand directed by his or her parent or guardian or other adult person having the care and custody of the minor,
(3) when the minor is returning directly home from a meeting, entertainment or recreational activity directed, supervised or sponsored by the local educational authorities, or
(4) when the presence of such minor in said place or places is connected with and required by some legitimate business, trade, profession or occupation in which said minor is lawfully engaged.
Nunez, 114 F.3d at 938-39 (quotation omitted).
The ordinance in Johnson did not apply in the following circumstances: "the said minor is accompanied by his parents, tutor or other responsible adult or . . . the said minor is upon an emergency errand." Johnson, 658 F.2d at 1067 n. 1 (quotation omitted).
In Nunez, the Ninth Circuit held that a curfew ordinance without a First Amendment exception (but containing close to the same exceptions as Indiana's curfew law) was fatally overbroad. The court stated that the City of San Diego, which enacted the ordinance, had a compelling interest in protecting the entire community from crime, including juvenile crime, and in protecting the safety and welfare of its minors. See Nunez, 114 F.3d at 946. However, the Nunez court stated that "the ordinance is not narrowly tailored because it does not sufficiently exempt legitimate First Amendment activities from the curfew." Id. at 951. The court further explained that "[t]he City did not create a robust, or even minimal, First Amendment exception to permit minors to express themselves during curfew hours without the supervision of a parent or guardian, apparently preferring instead to have no First Amendment protection at all. This is not narrow tailoring. . . . The ordinance is not a reasonable time, place, and manner restriction under the First Amendment." Id.
Likewise, in Johnson, the court struck down a curfew ordinance with no First Amendment exception:
[T]his curfew ordinance, however valid might be a narrowly drawn curfew to protect society's valid interests, sweeps within its ambit a number of innocent activities which are constitutionally protected. The stifling effect upon these legitimate activities is overt and is both real and substantial. Regardless of the legitimacy of [the City of] Opelousas' stated purposes of protecting youths, reducing nocturnal juvenile crime, and promoting parental control over their children, less drastic means are available for achieving these goals. Since the absence of exceptions in the curfew ordinance precludes a narrowing construction, we are compelled to rule that the ordinance is constitutionally overbroad.
Johnson, 658 F.2d at 1074. In so holding, the court noted:
It would be anomalous to permit minors to express their views on divisive public issues, Tinker v. Des Moines Independent Community School District, and to obtain abortions without parental consent, Bellotti v. Baird; Planned Parenthood v. Danforth, but to deny them the right to decide, within the bounds of parental judgment, whether or not to engage in . . . activities which at present are proscribed by the curfew ordinance.
Id. at 1073; see also Waters v. Barry, 711 F. Supp. 1125, 1134-37 (D.D.C. 1989) (declaring a curfew law unconstitutional because it contained no exemption for the exercise of First Amendment rights).
The curfew law in Waters did not apply in the following circumstances:
(1) When a minor is accompanied by a parent;
(2) When a minor is returning home by way of a direct route from an activity that is sponsored by an educational, religious, or non-profit organization within 60 minutes of the termination of the activity, if the activity has been registered with the Mayor in advance;
(3) When a minor is traveling in a motor vehicle;
(4) When a minor is acting within the scope of legitimate employment . . ., and the minor has in his or her possession a copy of a valid work or theatrical permit or an affidavit from the employer; or
(5) When, due to reasonable necessity . . . [a] minor who is a custodial parent is engaged in an emergency errand that is directly related to the health or safety of his or her child . . .; or [a] minor is engaged in an emergency errand and the minor has in his or her possession, if practicable, a written statement signed by the parent. . . .
Waters, 711 F. Supp. at 1141-42.
By contrast, every reported federal case in which a curfew law has been upheld against constitutional challenge has involved a curfew law with significantly broader exceptions, including an explicit First Amendment exception. See Hutchins, 188 F.3d at 535 (among other exceptions, or "defenses", the curfew law is not violated if the minor is "exercising First Amendment rights, including free exercise of religion, freedom of speech, and the right of assembly."); Schleifer, 159 F.3d at 846 (among other exceptions, "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"); Qubt, 11 F.3d at 498 (among other exceptions, or "defenses", the curfew law is not violated if 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"); Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1246 (M.D.Pa. 1975) (among other exceptions, the curfew law is not violated if "[t]he minor is exercising first amendment rights protected by the Constitution, such as free exercise of religion, freedom of speech, and the right of assembly, provided the minor first has given notice to the Mayor of the Borough by delivering to the communications center personnel at the Borough Municipal Building a written communication signed by the minor and countersigned if practicable by a parent of the minor which specifies when, where, in what manner, and for what first amendment purpose the minor will be on the streets at night during the curfew time period"), aff'd mem., 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964 (1976); Ramos ex rel. Ramos v. Town of Vernon, 48 F. Supp.2d 176, 178 (D. Conn. 1999) (among other exceptions, the curfew law is not violated if "the minor is exercising his/her first amendment rights").
It is worth noting that in the cases in which curfew laws were upheld against constitutional challenge, the curfew laws not only contain broad First Amendment exceptions, but they also contain other significantly broader exceptions than the Indiana curfew law. Like the Indiana law, all of the curfew laws in those cases state that the law is not violated if the minor is accompanied by a parent (or designated adult) or is engaged in an employment activity. See Hutchins, 188 F.3d at 535; Schleifer, 159 F.3d at 846; Qubt, 11 F.3d at 498; Bykofsky, 401 F. Supp. at 1246; Ramos, 48 F. Supp.2d at 179. They also contain broader "responsible entity" exceptions than the Indiana law. See Hutchins, 188 F.3d at 535 (in addition to excepting school, employment and religious activities, also excepting "other recreational activity sponsored by the District of Columbia, a civic organization, or another similar entity that takes responsibility for the minor"); Schleifer, 159 F.3d at 846 (also excepting "supervised activities sponsored by . . . civic . . . and other public organizations"); Qubt, 11 F.3d at 498 (same); Bykofsky, 401 F. Supp. at 1247 (also excepting an activity of a "voluntary association"). They also contain exceptions for errands, see Hutchins, 188 F.3d at 535; Schleifer, 159 F.3d at 846; Qubt, 11 F.3d at 498; Ramos, 48 F. Supp.2d at 179 (any "specific business or activity . . . permitted by [the minor's] parent . . .), emergencies, see Hutchins, 188 F.3d at 535; Schleifer, 159 F.3d at 846; Qubt, 11 F.3d at 498; Bykofsky, 401 F. Supp. at 1247 ("a case of reasonable necessity . . ."); Ramos, 48 F. Supp.2d at 179, interstate travel, see Hutchins, 188 F.3d at 535; Schleifer, 159 F.3d at 846; Qubt, 11 F.3d at 498; Bykofsky, 401 F. Supp. at 1247, and being in front of the minor's home or the home of a neighbor, see Hutchins, 188 F.3d at 535; Schleifer, 159 F.3d at 846; Qubt, 11 F.3d at 498; Bykofsky, 401 F. Supp. at 1247. Also in contrast to the Indiana law, the curfew laws in the cases listed below either do not apply to seventeen-year-olds, see Hutchins, 188 F.3d at 534; Schleifer, 159 F.3d at 846; Qubt, 11 F.3d at 498, or allow seventeen-year-olds to be excepted from application of the law, see Bykofsky, 401 F. Supp. at 1247. Thus, the discussions in these cases about the importance of a broad First Amendment exception (which are recounted below) must be understood to be talking about a First Amendment exception in addition to the other exceptions — and in every case, the "other exceptions" are significantly broader than the "responsible entity" exceptions in Indiana's curfew law. This point is important because Defendants argue that a broad First Amendment exception is not necessary in part because of the Indiana law's "responsible entity" exceptions.
To varying degrees, each of the courts upholding curfew laws against constitutional challenge indicated the importance of the First Amendment activities exception. For instance, in Hutchins, a five-judge plurality of the District of Columbia Circuit stated:
Appellees suggest, however, that the curfew — even with the ["exercising First Amendment rights"] defense — will significantly deter juveniles from engaging in First Amendment activities in the first instance. But appellees have not provided a convincing argument as to why this might be so. Given that the First Amendment defense by definition provides full protection, any residual deterrent caused by the curfew would pose at most an incidental burden on juveniles' expressive activity or rights of association.
Hutchins, 188 F.3d at 548. The plurality concluded that:
[T]he eight defenses to the curfew strengthen the relationship between the curfew and its goal of reducing juvenile crime and victimization by narrowing the scope of the curfew. That is, the defenses . . . help ensure that the ordinance does not sweep all of a minor's activities into its ambit but instead focuses on those nocturnal activities most likely to result in crime or victimization.
Id. at 545 (five-judge plurality opinion).
In Schleifer, the Fourth Circuit stated:
Plaintiffs insist that this [ First Amendment] exception accords standardless discretion to law enforcement officers to decide whether or not the exception applies. According to plaintiffs, it also forces citizens to learn a complex body of constitutional law in order to comprehend its scope.
We decline to punish the City for its laudable effort to respect the First Amendment. A broad exception from the curfew for such activities fortifies, rather than weakens, First Amendment values. Plaintiffs basically attempt to place city councils between a rock and a hard place. If councils draft an ordinance with exceptions, those exceptions are subject to a vagueness challenge. If they neglect to provide exceptions, then the ordinance is attacked for not adequately protecting First Amendment freedoms. It hardly seems fitting, however, for courts to chastise elected bodies for protecting expressive activity. The Charlottesville ordinance is constitutionally stronger with that protection than without.
Schleifer, 159 F.3d at 853; see also id. at 854 ("The First Amendment exception provides adequate notice to citizens. It is perfectly clear that core First Amendment activities such as political protest and religious worship after midnight would be protected. It is equally clear that rollerblading would not. Between these poles may lie marginal cases, which can be taken as they come.").
And in Qutb, the Fifth Circuit stated:
With the ordinance before us today, the city of Dallas has created a nocturnal juvenile curfew that satisfies strict scrutiny. By including the defenses to a violation of the ordinance, the city has enacted a narrowly drawn ordinance that allows the city to meet its stated goals while respecting the rights of the affected minors. . . . Most notably, if the juvenile is exercising his or her First Amendment rights, the curfew ordinance does not apply.
Qutb, 11 F.3d at 494 (emphasis added).
And in Ramos, the court said of the First Amendment activities exception: "[T]he Court finds this laudable attempt to protect First Amendment rights to be a content-neutral regulation that does not burden substantially more speech than necessary to further the town's valid goals. It is apparent that the curfew ordinance protects core First Amendment activities. . . ." Ramos, 48 F. Supp.2d at 183; see also id. at 185-86 ("[T]he Court finds that the number and breadth of exceptions to the curfew ordinance [including the First Amendment exception] render its scope sufficiently narrow to withstand intermediate scrutiny.").
The curfew law in Bykofsky contains the most restrictive First Amendment exception of any curfew law to be upheld in a federal case, because it requires minors to notify the mayor's office in writing prior to engaging in unsupervised First Amendment activities during curfew hours. But even the ordinance in that case permitted an unsupervised minor to engage in any activity protected by the First Amendment. The court stated:
The First Amendment exception in Bykofsky states that the curfew law does not apply if: The minor is exercising first amendment rights protected by the Constitution, such as free exercise of religion, freedom of speech, and the right of assembly, provided the minor first has given notice to the Mayor of the Borough by delivering to the communications center personnel at the Borough Municipal Building a written communication signed by the minor and countersigned if practicable by a parent of the minor which specifies when, where, in what manner, and for what first amendment purpose the minor will be on the streets at night during the curfew time period. . . . 401 F. Supp. at 1247.
Section 5(c) of the ordinance contains an exception to the curfew for the bona fide exercise of first amendment rights for political, religious, or communicative purposes. Contrary to plaintiffs' argument, there is no prior restraint of these first amendment freedoms since the minor need not first obtain a permit to utilize this curfew exception. Th[e] required giving of notice cannot be equated with prior restraint. Section 5(c) does not empower the Borough officials to deny permission to be on the streets for the excepted first amendment purposes; no written or verbal permission from anyone need be obtained in order to be on the streets to exercise these first amendment freedoms. . . . A fairly administered notice provision restricts only slightly first amendment rights of assembly, association, and free expression without affecting in any way the content.401 F. Supp. at 1258.
The review of these curfew cases lends support for the position that without a general First Amendment activities exception, a curfew law is overbroad. The three cases involving laws without such exceptions (Nunez, Johnson and Waters) were struck down on overbreadth grounds while the cases involving laws with such exceptions were not. These cases reinforce the court's conclusion that Defendants have failed to demonstrate, using "reasonable inferences based on substantial evidence," Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (citation omitted) (four-Justice plurality opinion), that the burden on speech caused by the curfew law serves to advance the curfew law's goals, cf. Ward, 491 U.S. at 799 ("Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.").
Defendants argue that "[a] vague catch-all exception labeled `first Amendment activities' fails to preserve the State's interest in ensuring that some other adult figure has responsibility for minor children during the curfew hours." (Defs.' Mem. in Supp. of Cross-Mot. for Summ. J. and in Resp. to Pls.' Mot. for Summ. J. at 5.) However, to the extent Defendants claim that Indiana has a substantial government interest "in ensuring that some . . . adult figure has responsibility for minor children during the curfew hours," the court rejects the notion. As discussed above, Indiana has substantial interests in: (1) providing for the safety and well-being of its children; (2) combating juvenile crime; and, (3) promoting and supporting the relationships between parents and their minor children. "[E]nsuring that some . . . adult figure has responsibility for minor children during the curfew hours" is merely a means to achieve those important interests; Defendants have not shown that it is a substantial interest in and of itself.
If indeed Indiana has a substantial government interest "in ensuring that some . . . adult figure has responsibility for minor children during the curfew hours," then Defendants offer no explanation for why the curfew law permits minors to travel to and from the excepted activities during curfew hours unsupervised.
Moreover, as discussed above, there are a substantial number of situations in which protected political and associational activity involves similar responsible adult supervision as the excepted activities (religious events, school sanctioned activities, and lawful employment). Therefore, even if Indiana had a substantial government interest "in ensuring that some . . . adult figure has responsibility for minor children during the curfew hours," the curfew law, by failing to exempt protected political and associational activity, would burden substantially more speech than is necessary to further that interest, and would thus fail the "narrow tailoring" standard. See Ward, 491 U.S. at 799.
Finally, Defendants argue that an exception for First Amendment activities would "give rise to the possibility for abuse" because minors would endow such things as trips to the mall with "heretofore unknown expressive characteristics." (Defs.' Mem. in Supp. of Cross-Mot. for Summ. J. and in Resp. to Pls.' Mot. for Summ. J. at 6.) The court in Hutchins dealt with a similar argument:
Appellees claim that the First Amendment defense is impermissibly vague because juveniles would need to be `constitutional scholars' to know what activities were forbidden and that police officers untrained in the intricacies of the First Amendment will, in their unguided discretion, enforce the curfew unconstitutionally. But the defense simply ensures that the curfew will not be applied to protected expression; it is no more vague than the First Amendment itself.
The curfew law in Hutchins provided a defense if a minor was "[e]xercising First Amendment rights protected by the United States Constitution, including free exercise of religion, freedom of speech, and the right of assembly." Hutchins, 188 F.3d at 546 n. 9.
The curfew law in Hutchins provided a defense if a minor was "[e]xercising First Amendment rights protected by the United States Constitution, including free exercise of religion, freedom of speech, and the right of assembly." Hutchins, 188 F.3d at 546 n. 9.
Hutchins, 188 F.3d at 546 (plurality opinion). And the court in Schleifer also dismissed a similar argument:
The First Amendment exception provides adequate notice to citizens. It is perfectly clear that core First Amendment activities such as political protest and religious worship after midnight would be protected. It is equally clear that rollerblading would not. Between these poles may lie marginal cases, which can be taken as they come.
See Schleifer, 159 F.3d at 854 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503 n. 21 (1982)). This court is persuaded by this reasoning. While there may be disputes between minors and law enforcement in "marginal cases", this does not constitute a sufficient justification for upholding a law that burdens substantially more activity that is clearly protected by the First Amendment than is necessary to serve Indiana's government interests.
Having determined that the curfew law is not narrowly tailored to achieve Indiana's significant government interests, the court does not reach the question of whether the statute leaves open adequate alternative channels of expression.
In conclusion, the court has the duty to exercise independent judgment in assuring itself that, "in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666 (1994) (citation omitted) (four-Justice plurality opinion). Therefore, while legislatures have substantial discretion in drafting and enacting laws, that discretion has bounds. See id. On the record before the court, Indiana exceeded those bounds in enacting its curfew law.
The court finds that Indiana's curfew law is overbroad in violation of the First Amendment. As to the First Amendment overbreadth challenge, Plaintiffs' Motion for Partial Summary Judgment will be GRANTED and Defendants' Cross-Motion for Summary Judgment will be DENIED.
III. Substantive Due Process
The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." That Amendment's Due Process Clause "includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests." Troxel v. Granville, 120 S.Ct. 2054, 2060 (2000) (quotation and citation omitted) (four Justice plurality). In Troxel, the Supreme Court reaffirmed that the liberty interest of parents in the care, custody, and control of their children "is perhaps the oldest of the fundamental liberty interests recognized by this Court." Id. ("[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.") (four Justice plurality); see also id. at 2066 (Souter, J., concurring); id. at 2068 (Thomas, J., concurring). Substantive due process under the Fourteenth Amendment "forbids the government to infringe . . . fundamental liberty interests . . . unless the infringement is narrowly tailored to serve a compelling government interest." Reno v. Flores, 507 U.S. 292, 302 (1993); see also Troxel, 120 S.Ct. at 2068 (noting that strict scrutiny should be applied to infringements of fundamental rights) (Thomas, J., concurring).
Plaintiff Nancy Hodgkins (Colin's mother) argues that Indiana's curfew law unlawfully impinges on the right of parents to rear their children without undue interference. Specifically, she complains that the statute lacks any provision which would allow parents to preapprove an unsupervised nighttime activity (such as an errand) for their children. The relevant caselaw provides at least some support for Ms. Hodgkins' argument. See Nunez, 114 F.3d at 951 ("The broad sweep of the ordinance, and the paucity of exceptions to allow unsupervised nocturnal activity, burden the parents just as they do the minors. The curfew is, quite simply, an exercise of sweeping state control irrespective of parents' wishes. Without proper justification, it violates upon the fundamental right to rear children without undue interference. . . . The ordinance does not allow an adult to pre-approve even a specific activity after curfew hours unless a custodial adult actually accompanies the minor. Thus, parents cannot allow their children to function independently at night, which some parents may believe is part of the process of growing up."); Johnson, 658 F.2d at 1074 ("[The government's] interest in whether juveniles engage in . . . nighttime [associational, employment, and travel] activities is not sufficient to justify the removal of the decision as to these activities from the childrens' parents."); McCollester v. City of Keene, 586 F. Supp. 1381, 1386 (D.N.H. 1984) (holding that a curfew ordinance violated parents' liberty interests in "family and child rearing"); see also Hutchins, 188 F.3d at 545-46 (holding that the curfew ordinance in that case survived a parent's substantive due process challenge because of the law's many broad exceptions) (plurality opinion); Schleifer, 159 F.3d at 853 (same); Qubt, 11 F.3d at 495-96 (same); Bykofsky, 401 F. Supp. at 1264 (same); Ramos, 48 F. Supp.2d at 187 (same).
As discussed above, the curfew laws in Hutchins, Schleifer, Qubt, Bykofsky and Ramos all contained significantly broader exceptions than Indiana's law.
However, since the court has already found that Indiana's curfew law is overbroad in violation of the First Amendment, there is no need to fully wrestle with Ms. Hodgkins' Due Process challenge. The relief she seeks — a declaration that the curfew law is unconstitutional — has already been fully afforded by virtue of the court's ruling on the First Amendment issue. Therefore, the court declines to rule on Ms. Hodgkins' Due Process claim. As to that Due Process claim, Plaintiffs' Motion for Partial Summary Judgment will be DENIED as moot and Defendants' Cross-Motion for Summary Judgment likewise will be DENIED as moot.
IV. Fourth Amendment
Plaintiffs argue that mandatory urinalysis and breathalyser tests that are performed on all juveniles arrested during the curfew sweeps violate the Fourth Amendment to the Constitution. The City responds that the suspicionless tests are justified under a "special needs" analysis.
This issue relates to City of Indianapolis policy only. The State of Indiana joined in the defense of the curfew law but takes no position on the suspicionless tests. The tests are not mandated or encouraged by the curfew law.
The Fourth Amendment, which applies to the states by virtue of the Fourteenth Amendment, protects individuals from unreasonable searches and seizures by the government. Defendants do not dispute that minors, as well as adults, are protected by the Fourth Amendment. Cf. New Jersey v. T.L.O., 469 U.S. 325, 334 (1985) (applying Fourth Amendment protections to high school students); Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, ___, 2000 WL 572758, at *4 (7th Cir. May 12, 2000) (same). Defendants also do not dispute that the collection and testing of urine, as well as breathalyser tests, constitute "searches" within the meaning of the Fourth Amendment. See Chandler v. Miller, 520 U.S. 305, 313 (1997) (urine testing); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-17 (1989) (breath and urine testing). It is clear therefore that the City's urine and breath testing of minors arrested during curfew sweeps are "searches" that are subject to the requirements of the Fourth Amendment.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
The issue, then, is whether these searches are "reasonable" within the meaning of the Fourth Amendment. "To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing." Chandler, 520 U.S. at 313 (citation omitted). The City concedes that the searches at issue are not based on individualized suspicion of wrongdoing.
Instead, the City claims that its searches fit within "the closely guarded category of constitutionally permissible suspicionless searches," id. at 309, justified by "special needs":
[P]articularized exceptions to the main rule [that a search be based on individualized suspicion] are sometimes warranted based on `special needs, beyond the normal need for law enforcement.' When such `special needs' — concerns other than crime detection — are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties. As Skinner stated: `In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.'
Id. at 313-14 (quoting Skinner, 489 U.S. at 619, 624; citation omitted).
Plaintiffs respond by arguing that (1) the searches in this case are made for normal law enforcement purposes (rather than for "concerns other than crime detection"), and (2) there is ample opportunity for the City to employ a suspicion-based system of searches.
Pursuant to the City's curfew sweep drug/alcohol testing policy, if a minor arrested in a curfew sweep and tests positive for drugs or alcohol, no new drug or alcohol charges are filed against the minor under any circumstances. Instead the policy is generally designed to encourage the minors who test positive to complete a 90-day diversion program. Pointing to this, the City argues that the breathalyser and urinalysis tests are administered "as a result of the Indianapolis community's special need to detect minors who are abusing drugs and alcohol and to intervene on behalf of those minors by making their parents aware of the abuse and providing rehabilitative programs for the minors and their parents." (Defs.' Mem. in Supp. of Cross-Mot. for Summ. J. and in Resp. to Pls.' Mot. for Summ. J. at 18.)
The particulars of the City's policy are set out in the Findings of Fact above.
However, in arguing that the City's searches are made for normal law enforcement purposes, Plaintiffs emphasize that under most circumstances, the results of the urinalysis and breathalyser tests determine whether the minor will face curfew charges in juvenile court: a minor who tests negative will have no curfew charges brought against him, whereas a minor who tests positive faces the prospect of curfew charges. Moreover, if the minor's curfew charge goes to trial and the minor loses (or pleads guilty), then the juvenile court is made aware of the of the minor's positive test result when determining the disposition (or sentence) to be imposed for the curfew violation. Because the results of the drug tests determine whether a minor caught in a curfew sweep will be subject to prosecution, Plaintiffs argue that the drug tests further normal law enforcement, regardless of the fact that the minor is subject to only being charged with a curfew violation rather than with a drug or alcohol violation.
Both sides' arguments have some merit. In many (if not most) cases, the determining factors as to whether the minor is subject to normal juvenile court jurisdiction (which the court assumes to be "normal . . . law enforcement," Chandler, 520 U.S. at 313, for juveniles) are the results of the breath and urine tests. But the City's stated "special need" — deterring drug use among minors through rehabilitative programs — is similar to the "special need" found sufficient in Vernonia School Distrist 47J v. Acton, 515 U.S. 646, 661 (1995) ("Deterring drug use by our Nation's schoolchildren. . . ."). But the school setting in Vernonia is significantly different than the normal juvenile law enforcement setting here. And it is clear that Vernonia does not stand for the proposition that the importance of deterring drug use among children is alone sufficient to justify suspicionless drug testing. In Willis v. Anderson Community School Corporation, 158 F.3d 415 (7th Cir. 1998), cert. denied, 526 U.S. 1019 (1999), the Seventh Circuit stated:
As a practical matter, the difference between the 90-day diversion program and being prosecuted for a curfew violation may be very slight. The juvenile court (who would know of the minor's positive drug or alcohol test result under the City's policy) has wide discretion to fashion a remedy tailored to the particular minor's situation, including ordering various types of outpatient treatment and family services. See IND. CODE § 31-37-19-1.
The Supreme Court has upheld suspicionless drug testing on only three occasions. See Vernonia, 515 U.S. 646 (upholding random testing of student athletes); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (ruling that it was permissible to test United States Customs officers who carry firearms or hold positions directly related to drug interdiction); Skinner, 489 U.S. 602 (upholding testing of railroad employees who violate safety rules or are involved in train accidents). The only one of these contexts that has some relevance to the instant case is that in Vernonia.
Moreover, in Vernonia, numerous "public interests," beyond the general benefit of deterring drug use among schoolchildren, combined to outweigh the student-athletes' privacy interests. These included the following: (1) drug use by students affects the whole student body because it disrupts the educational process; (2) athletes are particularly subject to risk from drug use because of the physical harm to the individual or to his peers that may result from the use of drugs while playing a sport; and, (3) the finding by the district court that the student body was in a state of rebellion, fueled by alcohol and drug use, and that the school's athletes were the leaders of the drug culture. See Vernonia, 515 U.S. at 662-63. None of these are present in this case.
[W]e must confess to the almost overwhelming temptation, given the effect that drugs have on the children who use them and on the educational process in general, to make the importance of deterring drug use among schoolchildren the beginning and end of our analysis. But we cannot focus solely on the benefits of deterrence. If this were the only relevant consideration, Vernonia might as well have sanctioned blanket testing of all children in public schools. And this it did not do.
Id. at 422 (citing, inter alia, Vernonia, 515 U.S. at 666 (Ginsburg, J., concurring)). Thus, "special needs" that reach beyond simply deterring drug use would seem to be required. Therefore, on balance, this court doubts that the City's alleged special need is sufficiently beyond the normal need for juvenile law enforcement to warrant any further inquiry under the "special needs" analysis. But the court need not definitively rule on this issue since the Plaintiffs' next argument is clearly meritorious.
Plaintiffs argue that, as in Willis, a suspicion-based system is workable. After examining Vernonia, Von Raab, Skinner and Chandler, the court in Willis stated: "All of these instructive cases strongly indicate that the feasibility of a suspicion-based search is a key consideration in determining whether it is reasonable for the government to implement a suspicionless regime." Id. at 420 (citation omitted). The court then noted:
As a practical matter, it may be that when a suspicion-based search is workable, the needs of the government will never be strong enough to outweigh the privacy interests of the individual. Or, stated slightly differently, perhaps if a suspicion-based search is feasible, the government will have failed to show a special need that is `important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized suspicion.'
Id. at 421 (quoting Chandler, 520 U.S. at 318). Despite this statement, the court engaged in the full "special needs" analysis, which involves balancing between "(A) the nature of the individual's privacy interest and the character of the intrusion, and (B) the nature and immediacy of the government's concern, as well as the efficacy of the means for meeting that concern." Id. (citing Vernonia, 515 U.S. at 654, 658, 660). Under this formulation of the "special needs" analysis, "courts consider the feasibility of a suspicion-based search when assessing the efficacy of the government's policy." Id. (citing Vernonia, 515 U.S. at 663; Chandler, 520 U.S. at 320).
In Willis, the defendant school corporation instituted a drug and alcohol testing policy that required drug testing (via urinalysis) for, among others, any student who was suspended from school for three or more days for fighting. See id. at 417. The corporation based its policy on evidence demonstrating a causal nexus between substance abuse and disruptive behavior. The purported purpose of the policy was "to help identify and intervene with those students who are using drugs as soon as possible and to involve the parents immediately." Id. Students did not receive additional punishment if they tested positive, and results of the tests were disclosed only to parents and a designated school official. See id. However, students who tested positive were required to participate in a drug education program and could be expelled from school if they failed to do so, and a student who refused to undergo a drug test was considered to have admitted unlawful substance use. See id. The student who brought the suit had been suspended for fighting but had refused to consent to the drug test. See id.
At the start of the "special needs" inquiry, the Willis court acknowledged the school's concerns justifying the search: deterring drug use, disciplining its students, and protecting the health of children. See id. at 420. The court found that the nature of the privacy interest of students suspended for fighting was similar to that of the student athletes in Vernonia because school children enjoy a lesser expectation of privacy than the general public. See id. at 421. However, the court noted that the privacy interest differed in two significant respects: there was no aspect of communal undress as in Vernonia (involving athletes), and, the students did not voluntarily choose to participate in the activity in the same deliberate manner as in Vernonia and Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998) (upholding random testing of all students involved in extracurricular activities). See Willis, 158 F.3d at 422.
When addressing the "nature and immediacy" of the drug problem, as indicated above, the Willis court noted the importance of deterrence, but refused to allow deterrence alone to justify suspicionless drug testing. See id. The court found that the nature of the governmental concern was narrowly targeted at the group of students the school perceived to be at risk for drug use (i.e., those engaging in serious misconduct such as fighting), and the immediacy of the concern was to reduce the perceived increase in drug use at the school. See id. at 423. The court concluded that the nature and immediacy of the school's concern was not meaningfully less than in Vernonia. See id.
Finally, the Willis court reached the issue of the efficacy of the drug testing policy. The court noted that it had asked the school corporation's counsel to explain why individualized suspicion was impracticable in this context. See id. "His primary response was that `the school board felt [individualized suspicion] works sometimes, but it's obviously not working in the Anderson schools because we still have a problem.'" Id. The court then stated:
But our determination of whether the Corporation has demonstrated a special need cannot be controlled by the fact that a suspicionless regime casts a wider net than a suspicion-based regime. A suspicion-based approach might never round up as many wrongdoers as a suspicionless system, since some students may be particularly adept at hiding the signs of their drug and alcohol use. Indeed, one of the most effective means of preventing substance abuse among children may be to require them to provide a urine sample each time they pass through the schoolhouse gate. But, as we have tried to emphasize, the Supreme Court has not sanctioned blanket testing. Nor has it renounced the proposition that the Fourth Amendment normally requires individualized suspicion.
Id. (citing Chandler, 520 U.S. at 318). The court stated that because a student must meet with a high-ranking school official (such as the dean of students or principal) before he is suspended, "it is hard to imagine a scenario in which the Corporation's school officials are better-situated to make a determination of individualized suspicion than in the wake of student misconduct that warrants a three-day suspension." Id. This meeting "provides an opportunity for the designated school official to observe the child and determine whether there is a reasonable suspicion of substance abuse." Id. Therefore, the court stated that this meeting "distinguishes this case from those in which the Supreme Court has permitted suspicionless drug testing. In Von Raab, Skinner and Vernonia, the Supreme Court pointed to sound reasons why an individualized suspicion standard would be unworkable under the unusual circumstances presented." Id. at 424 (quotation omitted). The Willis court concluded: "Particularly because the Corporation has not demonstrated that a suspicion-based system would be unsuitable, in fact would not be highly suitable, we think the balance of our `context-specific inquiry' tips in favor of [plaintiff]." Id. at 424-25.
Willis controls the Fourth Amendment challenge in this case. As in Willis, the City's drug and alcohol testing is primarily designed to deter, rather than punish, drug and alcohol use among minors: in both cases the minors who test positive are not charged with drug or alcohol crimes, parents are involved, and the minors are required to complete drug education programs. The privacy interest of the minors in this case is roughly similar to the students in Willis — although the minors in this case are already in custody pursuant to the curfew arrest, school children "enjoy a lesser expectation of privacy than members of the population generally." Willis, 158 F.3d at 421 (quotation omitted). As in Willis, the immediacy of the City's concern is high (the 50% hit rate verifies this), and the court will assume for this discussion that nature of the City's concern is narrowly targeted at the group of minors most at risk for drug or alcohol use (i.e., those violating the curfew law).
Simply because the minors who were tested were under arrest for violating the curfew law does not alone mean that the be may be tested without any individualized suspicion. See Schmerber v. California, 384 U.S. 757, 769-70 (1966) ("[T]he mere fact of a lawful arrest does not end our inquiry [under the Fourth Amendment]. . . . The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions [involved in collecting bodily fluids] on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.").
Most importantly, as in Willis, it is hard to imagine a scenario in which the City would be better-situated to make a determination of individualized suspicion than in the context of a curfew sweep arrest. During the curfew sweeps, an arrestee interacts with at least one police officer (the arresting officer) and one Probation representative (who administers the intake process, asking the minor his name, address, telephone number, and questions him about the arrest to verify the information contained in the police report). The police officer and Probation representative, who presumably are even better trained at determining reasonable suspicion than the school officials in Willis, have ample opportunity to observe the minor and determine whether reasonable suspicion exits for drug or alcohol use.
At oral argument, the court asked the City's counsel if a suspicion-based system would be workable. He answered that it was not, if the City wants the same "efficacy and results" that the current suspicionless regime has. Of course, as set out above, his answer mirrors the school corporation counsel's response to a similar question by the Seventh Circuit in Willis. See Willis, 158 F.3d at 423 ("[The school corporation's counsel's] primary response was that `the school board felt [individualized suspicion] works sometimes, but it's obviously not working in the Anderson schools because we still have a problem.'"). At oral argument in this case, the City's counsel did add a new wrinkle to this argument. He conceded that an arrestee's interaction with the police and Probation representatives allows ample opportunity for the development of reasonable suspicion for drugs and/or alcohol used by the arrestee on that particular night. But, he argued, the urinalysis also tests for drug use by the minor on previous nights. Therefore, if an arrestee has consumed no drugs or alcohol on the day of his arrest, but did consume drugs on the night prior (or some time reasonably prior) to his assert, then this minor would not be caught in a suspicion-based regime, but would be caught in the current suspicionless regime.
One fundamental problem with the City's `new wrinkle' is that no evidence has been designated to support the factual assertion that the urinalysis tests for the previous day's drug use. Moreover, the City offers no evidence showing how many of the curfew sweep arrestees tested positive for drug use only for the previous night (or a prior time) — it could be that this is a very small number. And more importantly, this argument undercuts the Defendants' overall justification for the curfew law, i.e., that unsupervised minors in public during curfew hours are acutely susceptible to the dangers of drug and alcohol use. Instead, the City's argument presumes that a significant amount of arrestees are not under the influence of drugs or alcohol at the time of their arrest, but instead only used drugs or alcohol on the previous night(s) (when there is no indication that they also violated the curfew law). But most importantly, this court rejects the City's argument for the same reason that the school corporation counsel's similar argument was rejected in Willis. See id. ("[O]ur determination of whether the Corporation has demonstrated a special need cannot be controlled by the fact that a suspicionless regime casts a wider net than a suspicion-based regime. A suspicion-based approach might never round up as many wrongdoers as a suspicionless system. . . . But, as we have tried to emphasize, the Supreme Court has not sanctioned blanket testing. Nor has it renounced the proposition that the Fourth Amendment normally requires individualized suspicion.") (citing Chandler, 520 U.S. at 318).
As in Willis, this court finds that the balance of the "context-specific inquiry" tips in favor of the Plaintiffs. Although the 50% hit rate for drugs and/or alcohol denotes a serious problem with drug and alcohol abuse by Indianapolis' minors, the City has failed to demonstrate that a suspicion-based system would be unsuitable under these circumstances. Therefore, as to Plaintiffs' challenge to the City's drug and alcohol testing policy, Plaintiffs' Partial Motion for Summary Judgment will be GRANTED and the City's Cross-Motion for Summary Judgment will be DENIED.
V. Motion for Class Certification
Plaintiffs request that this cause be certified as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2). Plaintiff Colin Hodgkins seeks to represent a class, referred to as "Class A", which he defines as "all residents of Marion County, Indiana, who are under the age of 18." (Second Am. Mot. to Certify Cause as a Class Action at 1.) Mr. Hodgkins also seeks to represent a subclass of Class A, referred to as "Subclass A-1", which he defines as "all residents of Marion County, Indiana, who are under 18 and who, because of their past, current, or future behavior, are subject to being detained by Marion County law enforcement officials for violation of Indiana's curfew laws, Indiana Code Section 31-37-3-1 et seq." (Id.)
The Court finds that Class A and Subclass A-1 satisfy the standards articulated in Federal Rule of Civil Procedure 23(a). Obviously, these classes, which would consist of many thousands of individuals, are so numerous as to render joinder impracticable. Also, there are questions of law or fact common to all members, namely, as to Class A, whether the curfew law is constitutional, and, as to Subclass A-1, whether Defendants' suspicionless searches of class members arrested for curfew violations are constitutional. Mr. Hodgkins has been arrested for a curfew violation and was forced to provide urine and breath samples for the City's drug and alcohol tests. He also indicates that he intends to be out in public past curfew in the future to engage in political activites, as well as attend social events and professional basketball games. Thus, his claims are typical of the claims of Class A and Subclass A-1 members. Finally, although Mr. Hodgkins was not engaging in protected First Amendment activity when he was arrested for a curfew violation, he provides evidence of an intention to do so in the future. Thus far Mr. Hodgkins has fairly and adequately represented both Class A and Subclass A-1, and it appears that he will continue to do so if necessary. See FED. R. CIV. P. 23(a)(1)-(4); see also Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (certifying class challenging juvenile curfew ordinance); Waters v. Barry, 711 F. Supp. 1125, 1130-31 (D.D.C. 1989) (same).
Although Defendants initially opposed Plaintiffs' motion for class certification, at oral argument, Defendants indicated that they do not now oppose the motion.
The Court is further convinced that the putative class and subclass satisfy the requirements of Rule 23(b)(2). By implementing the curfew law and administering urine and breath searches during the curfew sweeps, Defendants have "acted . . . on grounds generally applicable to the class." FED. R. CIV. P. 23(b)(2); see also Johnson, 658 F.2d at 1070; Waters, 711 F. Supp. at 1130-31; Patrykus v. Gomilla, 121 F.R.D. 357 (N.D.Ill. 1988) ("Certification under Rule 23(b)(2) is particularly appropriate in class actions brought to vindicate civil or constitutional rights."). Also, class certification under Rule 23(b)(2) is appropriate where, as here, the claims of the members of the classes may become moot (because they become older than seventeen and are no longer subject to the curfew law) as the case progresses. See Johnson, 658 F.2d at 1070; Waters, 711 F. Supp. at 1131.
Therefore, as to Class A and Subclass A-1, Plaintiffs' Second Amended Motion to Certify Cause as a Class Action is GRANTED. This action is certified as a class action as follows:
Colin Hodgkins represents Class A, which is defined as:
all residents of Marion County, Indiana, who are under the age of 18.
Colin Hodgkins represents represents Subclass A-1, which is defined as:
all residents of Marion County, Indiana, who are under 18 and who, because of their past, current, or future behavior, are subject to being detained by Marion County law enforcement officials for violation of Indiana's curfew law, Indiana Code Section 31-37-3-1 et seq.
Plaintiff Nancy Hodgkins also seeks to certify a putative class, referred to as "Class B", which she defines as "all parents and legal guardians of persons who are residents of Marion County, Indiana, and who are under the age of 18." (Second Am. Mot. to Certify Cause as a Class Action at 2.) However, as discussed above, since the court found that Indiana's curfew law is overbroad in violation of the First Amendment, there is no need for the court to decide Ms. Hodgkins', and Class B's, Due Process challenge. The relief sought — a declaration that the curfew law is unconstitutional — has already been fully afforded by virtue of the court's ruling on the First Amendment issue. Therefore, as to Class B, Plaintiffs' Second Amended Motion to Certify Cause as a Class Action is DENIED as moot.
VI. Certification for Immediate Appeal
Mr. Hodgkins' claim for individual damages is still pending, so this is an interlocutory order. Ordinarily, an interlocutory order may not be immediately appealed; but pursuant to 28 U.S.C. § 1292(b), an interlocutory appeal may be taken if the district court certifies the order for appeal and the court of appeals, in its discretion, permits the appeal to be taken. The district court must be satisfied that three statutory requirements are met before it certifies an interlocutory order for appeal: (1) the order sought to be appealed "involves a controlling question of law"; (2) "there is substantial ground for difference of opinion" as to that question of law; and, (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." See 28 U.S.C. § 1292 (b).
Section 1292(b) provides in full:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
The first of the three statutory requirements is that the order sought to be appealed must involve "a controlling question of law." 28 U.S.C. § 1292(b). "The cases do not interpret the term [`controlling'] literally. A question of law may be deemed `controlling' if its resolution is quite likely to affect the further course of the litigation, even if not certain to do so." Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 658-59 (7th Cir. 1996) (citing Johnson v. Burken, 930 F.2d 1202, 1205-06 (7th Cir. 1991)); see also In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 605 (7th Cir. 1997). The Seventh Circuit has endorsed a flexible standard, stating that "`controlling' means serious to the conduct of the litigation, either practically or legally." Johnson, 930 F.2d at 1206 (7th Cir. 1991) (quotation omitted).
In this case, the issue of whether Indiana's curfew law is overbroad in violation of the First Amendment is sufficiently "serious to the conduct of the litigation" to constitute a "controlling question of law." This issue is the sole ground relied upon by the court to invalidate a state statute, and the ruling resolves the sole claim of Class A.
The next requirement of § 1292(b) is that "there is substantial ground for difference of opinion" as to the question of law. There is no Seventh Circuit or Supreme Court case that clearly controls the outcome of the First Amendment issue in this case. Instead, the issue required a detailed analysis of whether the curfew law is a constitutional time, place or manner restriction on minor's First Amendment rights. Although the court ultimately sided with Plaintiffs on this issue, Defendants presented very substantial arguments that the curfew law is sufficiently narrowly tailored to survive Plaintiffs' First Amendment challenge. The court finds that there is "substantial ground for difference of opinion" as to the question of whether Indiana's curfew law is overbroad in violation of the First Amendment.
The final requirement of § 1292(b) is that "an immediate appeal from the order may materially advance the ultimate termination of the litigation." As evidenced by the many cases (cited in the First Amendment discussion above) upholding the constitutionality of narrowly-tailored curfew laws, a State can write a curfew law that will survive constitutional challenge and further the important government interests of curbing juvenile crime and supporting parent-child relationships. It serves the public interest for Indiana to know as soon as possible whether this court's view of the constitutionality of the current curfew law is correct, because if it is correct, the General Assembly can (if it so chooses) pass a more narrowly-tailored curfew statute as soon as possible. And if on appeal it is determined that the statute is constitutional as currently written, then it is likewise in the public interest for this determination to be made as soon as possible so that municipalities throughout Indiana may resume enforcement. It is therefore in the public interest for this issue to be finally resolved as soon as possible. In this way, the court finds that an immediate appeal from this order may materially advance the ultimate termination of the litigation.
For the reasons stated above, the court is of the opinion that this Entry involves a controlling question of law as to which there is substantial ground for difference of opinion, i.e., whether Indiana's curfew law is overbroad in violation of the First Amendment, and the court is further of the opinion that an immediate appeal from this Entry may materially advance the ultimate termination of the litigation. The Order effectuating the rulings contained in this Entry will be certified under 28 U.S.C. § 1292(b).
The court has only discussed the First Amendment issue is this 1292(b) analysis. Of course, it is the entire Order which is appealed under 1292(b), not just individual issues. See 28 U.S.C. § 1292(b). Therefore, if the Defendants choose to appeal under 1292(b) and if the Seventh Circuit accepts, then the Seventh Circuit would be free to also consider the Fourth Amendment issue (and presumably, even the Substantive Due Process issue as well). This court is of the opinion that, in light of Willis and the cases cited therein, there is not "substantial ground for difference of opinion" as to the Fourth Amendment issue. But the Seventh Circuit could disagree. And if it did, then it is clear that the Fourth Amendment issue satisfies the other two requirements for a Section 1292(b) appeal. It "involves a controlling question of law" for Subclass A-1. And, "an immediate appeal from the order may materially advance the ultimate termination of the litigation" because the damages issue — which remains to be decided — would be rendered moot if it were to be determined that the City's suspicionless searches do not violate the Fourth Amendment.
VII. Conclusion
The court finds that Indiana's curfew law, Indiana Code § 31-37-3-1 et. seq., is overbroad in violation of the First Amendment. As to the First Amendment overbreadth challenge, Plaintiffs' Motion for Partial Summary Judgment will be GRANTED and Defendants' Cross-Motion for Summary Judgment will be DENIED. Defendants will be permanently enjoined from enforcing the curfew law as currently written.
This ruling disposes of Plaintiffs' pending Motion for Preliminary Injunction.
Since the relief Ms. Hodgkins seeks — a declaration that the curfew law is unconstitutional — has already been fully afforded by virtue of the court's ruling on the First Amendment issue, the court declines to rule on Ms. Hodgkins' Due Process claim. As to that Due Process claim, Plaintiffs' Motion for Partial Summary Judgment will be DENIED as moot and Defendants' Cross-Motion for Summary Judgment likewise will be DENIED as moot.
As to Mr. Hodgkins' Fourth Amendment challenge to the City's drug and alcohol testing policy, Plaintiffs' Partial Motion for Summary Judgment will be GRANTED and the City's Cross-Motion for Summary Judgment will be DENIED.
As to Class A and Subclass A-1, Plaintiffs' Second Amended Motion to Certify Cause as a Class Action is GRANTED. This action is certified as a class action as described above. As to putative Class B, Plaintiffs' Second Amended Motion to Certify Cause as a Class Action is DENIED as moot.
No final judgment will be issued at this time due to the pendency of Mr. Hodgkins' claim for individual damages for the violation of his rights. However, a separate Order effectuating these rulings and certifying the Order under 28 U.S.C. § 1292 (b) will be issued contemporaneously.
All further proceedings in this court shall be continued until further notification.
ALL OF WHICH IS ORDERED this 3rd day of July 2000.