Curfews Case Analysis

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Even though the case only held an Indiana statute unconstitutional, the reasoning will have repercussions in Wisconsin. Because Wisconsin has no statute establishing a curfew, but leaves that to individual municipalities, compliance with the decision will be far more complicated here.

Many curfew ordinances are patently unconstitutional in the wake of the holding. For example, Milwaukee City Ordinance 106-23 provides as follows: “It shall be unlawful for any person under the age of 17 years to congregate, loiter, wander, stroll, stand or play in or upon the public streets, highways, roads, alleys, parks, public buildings, places of amusement and entertainment, places of employment, vacant lots, or any public places in the city either on foot or in or upon any conveyance being driven or parked thereon [during the curfew hours] unless accompanied by his or her parent, guardian or other adult person having his or her care, custody or control.”

The constitutionality of the statute was upheld by the Wisconsin Supreme Court in City of Milwaukee v. K.F., 145 Wis.2d 24, 46, 426 N.W.2d 329, 339 (1988), in which the court held that the ordinance was “drawn as narrowly as practicable.”

In the wake of the Seventh Circuit’s decision, however, Milwaukee (and presumably hundreds of other municipalities) will have to redraft their curfew ordinances to place the burden on the officer to determine that the minor is not engaged in First Amendment activity.

The two cases cited by the court with approval in this regard, which can be used as blueprints for drafting new and acceptable ordinances, are Hutchins v. District of Columbia, 188 F.3d 531 (D.C.Cir.1999)(en banc); and Qutb v. Strauss, 11 F.3d 488 (5th Cir.1993).

	Links 7th Circuit Court of Appeals Related Article Curfews on minors violate First Amendment

Even if a curfew ordinance is amended to comply with the court’s requirements, however, a challenge can still be made that all curfews are unconstitutional under the Fourteenth Amendment argument that the parent made.

Although the court left that issue unresolved, it stated, “we are not convinced that the affirmative defenses actually do minimize the state’s restraint on parental authority in a manner sufficient to overcome a constitutional attack.”

Hodgkins’ mother in this case argued that she “wishes to assert her rights as a parent to measure out more privileges and responsibilities to her children as they mature and grow more capable of acting responsibly with additional freedom. … it is part of a parents’ job to prepare a child for adulthood by doling out greater freedoms, including the freedom to remain out past curfew without being accompanied by an adult.”

If ultimately accepted by the court, this Fourteenth Amendment argument could render all curfews unconstitutional, even if amended as suggested to accommodate the minors’ First Amendment rights.

– David Ziemer

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David Ziemer can be reached by email.