Due to an increase in violence caused by “flash teen mobs” Philadelphia Mayor Michael Nutter announced the passage of a strict curfew for minors on the streets of Philly. The current curfew on the books in Philadelphia is 10:00 p.m. for those under 13; 10:30 p.m. for those 13 to 17 years old Sunday through Thursday and 12:00 a.m. on Friday and Saturday. The Friday and Saturday time has now been reduced to 9p.m. As with most of today’s “protect the children” laws, this rule came about due to a high profile incident last week where a flash mob of 20-30 youths (some as young as 11) went on a rampage and attacked and injured two people. The mayor issued some fighting words:
So, if you want to be aggressive, we’re going to be aggressive. And let me just share this with you. We’ve got the biggest, baddest gang in town – a committed group of citizens and a committed government and we’re working together and we’re not going to have this nonsense anymore
The law however is likely to face a court challenge as being unconstitutional. I am already surprised that no one has challenged the present Philly curfew, since constitutional challenges to curfews have been a common occurrence. Curiously, however, the Third Circuit (which is the federal appeals court that covers the Philadelphia area) has apparently never ruled on the subject. So the question may be ripe for a decision from the Third Circuit, which could then ultimately result in the case going up to the Supreme Court as different Circuit Courts around the country have decided this issue in a variety of ways.
The problem with curfew laws is that minors’ rights can be restricted more than adults’ rights. All courts agree that States have a compelling interest in protecting minors from harm. The controversy arises when you factor in the minors’ right to free travel and the parents’ rights to raise their children as they see fit as long as they are neither neglectful nor harmful. The split among the courts is in much scrutiny to apply to the curfew laws in reviewing their constitutionality. Because minors can be more regulated than adults, minors are not part of a “suspect class” (like classes based on race, gender, religion) so their classification would not be entitled to “strict scrutiny” – the highest level and the hardest for laws to pass. Also while the right to travel is an important liberty right, states have regularly been allowed to restrict travel in certain instances; this means that the “right” involved may not require a strict scrutiny analysis either. But because the right to travel freely is an important liberty interest, and because age has been viewed as a suspect class with respect to discrimination against older persons (especially in the workplace), courts do no apply the “rational basis” standard in reviewing curfews. This standard essentially says as long as the government can articulate a rational reason for enacting the law, it will stand.
Most courts have applied an mid-level of scrutiny which requires the State to show that the law has strong state interest behind it. The laws are looked at with skepticism and curfews that are tailored against particular conduct or geographical areas have a higher chance of passing muster. Courts apply this skeptical analysis in part because youth are not politically empowered and have difficulty obtaining access to courts and legislatures. Philly’s law which blanketly prohibits youths under 18 from being on the street after 9PM is very broad and sweeping. While a flash mob’s attack on two people is a horrible crime, the Mayor will have to show that rampant violence on the streets by youth is a regular occurrence that causes harm. Courts will look at crime statistics to determine if the State has a a sincere interest in restricting the travel of minors. Without the numbers to back up his claim that the curfew is an attempt to rein in lawlessness, Mayor Nutter’s curfew is not likely to pass the test should it be challenged.
I will leave it to others (or at least a later post) to discuss the appropriateness of the government deciding that a Philadelphian 17 year old should not be on the streets after 9pm, or whether that is a decision best left in the hands of a parent (or the 17 year old themselves). What other plans could the City have enacted to prevent the flash mob problem but not require high school students to be in their homes by 9pm on the weekend? More policing perhaps? Strict punishment for those engaging in acts of violence? Perhaps the City could have added the lateness of the hour as an aggravating factor to an assault case that would elevate the penalties for offenders. I think this one will have to play out in court, unless the citizens of Philly are happy with the curfew and do not challenge it.