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May 24, 1989

SIMBI WATERS, et al., Plaintiffs,
MARION BARRY, JR., et al., Defendants

The opinion of the court was delivered by: RICHEY

 I. Introduction

 The District of Columbia, like most major metropolitan areas and many rural communities, is in the midst of a crisis. As the local and national media daily report, the sale and use of illicit drugs in the District of Columbia has combined in recent years with long-standing problems of economic and social inequity to create an unprecedented explosion of violence. The drug scourge and its accompanying violence tend to make victims of those who can bear it least: the poor, minorities and the disadvantaged.

 The disease is undisputed; the question is how to cure. Facile, knee-jerk responses will not suffice. Just as mere punishment will never cure the drug addict, so mere martial tactics will never wean the District from its addiction to violence and illegal trafficking in drugs. Having said this, the Court emphasizes that any legislative response to the District's crisis is none of this Court's business, except insofar as it may impact upon the constitutional rights of the District's citizenry. The Mayor and the members of the City Council are the District's elected officials, and thus are entitled to deference as the Court reviews the District's response to the current situation.

 One such response, at issue in this lawsuit, is the decision of the District's elected officials to establish a nighttime juvenile curfew in the District of Columbia. The curfew statute (the "Act") would, *fn1" with certain general exceptions, make it illegal for persons below the age of 18 to be on the streets of the District between 11:00 p.m. and 6:00 a.m. *fn2" In addition to sanctioning the juveniles who violate the curfew, the Act would levy fines against the juveniles' parents.

 The stated objectives of the Act are to reduce the incidence of juvenile violence, both against and by juveniles, to reduce juveniles' exposure to drug trafficking and other criminal activity, and to aid parents and others responsible for juveniles in carrying out their supervisory obligations. The curfew has a stated term of 90 days. If, however, the Mayor is satisfied with the curfew, he may request that it be "continued" for an additional undefined period. *fn3"

 The plaintiffs -- a group of minor and near-minor residents of the District, several parents of minors, and individuals affiliated with religious organizations -- have challenged the Act. *fn4" They allege that the Act, if enforced, would work an unacceptable infringement of their First, Fourth and Fifth Amendment rights. On April 20, 1989, the date the Act was to have gone into effect, the plaintiffs obtained a temporary restraining order barring its enforcement, 711 F. Supp. 1121. The District subsequently agreed to an extension of the temporary restraining order until the Court had an opportunity to render a decision on the merits. The parties have now filed cross motions for summary judgment, and, as there are no disputes as to material facts, the matter is ripe for decision.

 Notwithstanding the deference the Court must show all legislation, the Court is constrained to conclude that the Act is constitutionally unacceptable. The Act cannot be implemented without violating the constitutional rights of thousands of innocent minors. As this Court has previously stated, we cannot throw the baby out with the bathwater in our efforts to deal with the problems that beset us. Because the Act does so, the Court will permanently enjoin its enforcement.

 The Court first addresses certain preliminary matters. The Court will then proceed to describe its reasoning on the merits of these important constitutional issues.

 II. Preliminary Matters

 A. Justiciability

 The District first challenges the plaintiffs' right to maintain this action. According to the District, the doctrine of "justiciability," and the claimed lack thereof in this case, preclude this lawsuit. The factual core of the District's position is the preenforcement nature of the plaintiffs' challenge to the Act. Because none of the named plaintiffs have been detained or otherwise sanctioned under the Act, and because no one else has either, the District argues that the plaintiffs' claims, at this stage, are merely "abstract" and "speculative." *fn5" Such claims, the District suggests, cannot presently sustain federal jurisdiction. According to the District, the plaintiffs' claims run afoul of Article III's requirement that every federal adjudication involve a live "case or controversy." *fn6"

 In the Court's view, the District's position is unduly formal; it places unwarranted emphasis upon the distinction between a preenforcement challenge and a post-enforcement challenge. The distinction, after all, is simply one of fact which may or may not be relevant in a particular case. Contrary to the logic of the District's position, an action does not become justiciable merely because enforcement has occurred, see City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983), nor is an action non-justiciable per se because enforcement has not occurred. See Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 108 S. Ct. 636, 642, 98 L. Ed. 2d 782 (1988).

 The question, properly stated, is whether the real adversity between the parties as to dispositive issues supports the conclusion that those issues have been properly and vigorously presented for adjudication. In the preenforcement context, that standard is satisfied when the "plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them." American Booksellers, 108 S. Ct. at 642. See also Babbitt v. United Farm Workers, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) (preenforcement plaintiff must allege "an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by a statute"); Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974) (facts established well-founded fear of enforcement); Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); McCollester v. City of Keene, 668 F.2d 617, 619 (1st Cir. 1982) (discussing standing in context of preenforcement challenge to curfew statute).

 When First Amendment concerns are raised, the danger that "law abiding" behavior will result in self-censorship serves to heighten Article III's sympathy toward preenforcement challenges. See American Booksellers, 108 S. Ct. at 642 ("Further, the alleged danger of this statute is, in large measure, one of self-censorship, a harm that can be realized even without an actual prosecution."); Dombrowski v. Pfister, 380 U.S. 479, 486, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965) ("Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression -- of transcendent value to all society, and not merely to those exercising their rights -- might be the loser"). *fn7"

 Here, the plaintiffs have undeniably established that they have engaged in past acts which would be prohibited if the Act were enforced. The record indicates that the minor plaintiffs have all participated in activities that have required their presence on the streets of the District after the curfew deadlines, and that they wish to continue to do so. Of equal importance, however, is the record's clear indication that the plaintiffs would abide by the Act if it were enforced -- the plaintiffs would curtail their involvement with perfectly lawful (but potentially nocturnal) activities in order to conform their behavior to law. It thus seems to the Court that the minor plaintiffs satisfy Article III from two perspectives. First, if they continue their prior practices without modification, they will clearly run afoul of the Act. A decision to do so would provide the plaintiffs with "an actual and well-founded fear" of prosecution under the Act. *fn8" Second, if they abstain from legitimate activities, they will have engaged in precisely the type of self-censorship that concerned the Supreme Court in American Booksellers. Citizens for whom the rule of law has meaning should not be deprived of their day in court because of their compliance with the law; silent but involuntary relinquishment of constitutional rights is, in this Court's view, an immediate and ripe "harm." It is a harm that perhaps lacks the immediate drama of a full arrest and prosecution, as well as the awful consequences that follow, *fn9" but it is a harm that nevertheless carries great constitutional significance.

 The District places great reliance upon the First Circuit's decision in McCollester v. City of Keene, 668 F.2d 617 (1st Cir. 1982), which also involved a challenge to a minor curfew ordinance. In McCollester, the court held that the plaintiff had failed to make out a justiciable case or controversy, and therefore directed that the plaintiff's complaint be dismissed. In McCollester, however, the court placed great emphasis upon the plaintiff's failure to give any indication of her past conduct or the conduct she intended to undertake in the future. It appears that the plaintiff alleged only (1) that she was a minor at the time of the complaint, and (2) that the defendants had actually enforced the ordinance by arrest and prosecution (but not against her). Id. at 618. In addition, the court noted a discrepancy between the avowed purposes of the ordinance -- to restrict disorderly juvenile behavior -- and its apparently broad scope, which by its terms prohibited perfectly innocuous nocturnal conduct. The court concluded that these two factors -- the plaintiff's fact-free complaint, and the potentially limited scope of the ordinance -- worked together to remove a facial likelihood that the plaintiff would ever be prosecuted. Id. at 621.

 The factors deemed significant in McCollester are not present in this case. The plaintiffs here have provided detailed and undisputed descriptions of their past activities, activities which they hope to continue. It is manifestly apparent that the bulk of these activities, if not modified, would be proscribed by the Act. Further, unlike the situation in McCollester, the expressed purposes of the Act do not suggest that the Act's application would or should be limited only to certain forms of juvenile behavior. The Act's stated objectives are to protect juveniles from nocturnal evils: thus, any time a juvenile were discovered about at night, he or she would presumably be "in danger" and therefore susceptible of arrest and detention. A contrary construction or application of the Act would depart from the Act's expressed purposes. In McCollester, on the other hand, a limiting construction or application would have been consistent with the ordinance's expressed objectives. The factors which counseled hesitation in McCollester are therefore absent in this case, and the Court declines to reach a similar result.

 For the foregoing reasons, the Court concludes that the plaintiffs' claims present a justiciable case or controversy. The District's motion for summary judgment on this point will be denied.

 B. Class Certification

 The plaintiffs filed their complaint in this action on behalf of a putative class, and now move for certification pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2). The plaintiffs define the class for which they seek certification as including

all minors in the District of Columbia, all parents of minor children in the District of Columbia, all stepparents, grandparents, uncles, aunts, adult friends and other adults who will be prevented from acting in loco parentis to minors in the District of Columbia during curfew hours, all young adults in the District of Columbia who might appear to a police officer to be minors, all for-profit corporations that will suffer harm because of the discrimination against them in the curfew law, and all persons and organizations whose exercise of political, cultural, religious or associational activities will be impaired because of the application of the curfew law to them, their co-religionists or associational companions.

 Plaintiffs' Motion for Class Certification at 1-2. *fn10"

 The Court is further convinced that the putative class satisfies the requirements of Rule 23(b)(2). By implementing the Act, the District has "acted or refused to act on grounds generally applicable to the class." Further, it has been held that class certification under Rule 23(b)(2) is particularly appropriate "where, as here, the claims of the members of the class may become moot as the case progresses." Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (certifying class challenging juvenile curfew ordinance).

 The District opposes the proposed class on the grounds that not all members oppose the curfew; the District offers the eminently plausible suggestion that, of the thousands of class members, more than a few favor imposition of a curfew. *fn11" From this fact, the District argues that the named plaintiffs' claims are not typical of those of the class members, and that the named plaintiffs will not fairly and adequately protect the interests of the class. *fn12"

 The Court agrees that the proposed class will inevitably include individuals who favor the curfew. In matters of this type, involving a class of this size, differences of opinion are unavoidable. Nevertheless, diversity of opinion within a class does not defeat class certification. See Lanner v. Wimmer, 662 F.2d 1349, 1357 (10th Cir. 1981) ("The fact that the class may have included persons who support the [challenged] program does not offend the principles set down in Hansberry v. Lee, 311 U.S. 32, 85 L. Ed. 22, 61 S. Ct. 115 (1940). It is not 'fatal if some members of the class might prefer not to have violations of their rights remedied.'") (quoting United States Fidelity & Guaranty Corp. v. Lord, 585 F.2d 860, 873 (8th Cir. 1978)); *fn13" Wilder v. Bernstein, 499 F. Supp. 980, 993 (S.D.N.Y. 1980) ("The fact that some members of the class may be satisfied with the existing system and may prefer to leave the violation of their rights unremedied is simply not dispositive of a determination under Rule 23(a).").

 The circumstances of this particular case augment the Court's conclusion that the interests of the class are not antagonistic to those of the named plaintiffs. See Nat'l Ass'n for Mental Health Inc. v. Califano, 230 U.S. App. D.C. 394, 717 F.2d 1451, 1458 (D.C.Cir. 1983) (disqualification under Rule 23(a)(4) requires "antagonistic or conflicting interests with the unnamed members of the class"). Should the plaintiffs succeed in their challenge to the Act, those members of the class who favor the curfew will not be affected in the least; they may still unilaterally obey the Act's time limits and thereby further each of the objectives articulated in ยง 3 of the Act. *fn14" The "conflict" or "antagonism" present here is thus largely theoretical; it is fundamentally different from the situation in which a successful class suit would somehow alter the rights or obligations of the dissenting class members.

 For the foregoing reasons, the Court concludes that the plaintiffs have satisfied the prerequisites to maintenance of a class action, and will order the certification of such a class in accordance with the plaintiffs' request.

 III. Constitutionality of the District's Curfew Legislation

 The plaintiffs' challenge to the Act contains four essential components. The first, and the centerpiece of this lawsuit, is the plaintiffs' claim that the Act infringes upon the First and Fifth Amendment rights of thousands of minors who live or visit the city but who have not engaged, and never will engage, in any type of illegal behavior. Because of this, the plaintiffs argue that the Act is unconstitutionally overbroad on its face. The second component is the plaintiffs' claim that enforcement of the Act would subject minors and near-minors to unreasonable searches and seizures in violation of their Fourth Amendment rights. The plaintiffs' third argument is that the Act violates minors' rights to equal protection by drawing an unjustifiable distinction between minors and non-minors. Fourth, and finally, the plaintiffs contend that the Act burdens the rights of parents (and others acting in loco parentis) to shepherd their childrens' upbringing, and thereby infringes upon such persons' Fifth Amendment liberty and privacy interests. The Court finds for the plaintiffs under its First Amendment, due process and equal protection claims, but rejects plaintiffs' Fourth Amendment claim. In light of these holdings, the Court does not reach the plaintiffs' claim that the act intrudes upon the due process rights of parents of juveniles subject to the Act, although this contention may also have some merit in the context of this case.

 A. First Amendment and Fifth Amendment Challenge

 The plaintiffs first contend that the Act is substantially overbroad, and thus violates the First and Fifth Amendments on its face. Although the Court agrees that the Act is in facial violation of the associational rights of minors, as well as of minors' fundamental liberty interests, the Court does not agree that an overbreadth analysis is appropriate in this instance. The Court first discusses its reasoning on this issue, and then proceeds to describe why the Act is nevertheless facially invalid under the First and Fifth Amendments.

 The plaintiffs contend that the Act, by rendering illegal myriad activities that would otherwise find protection under the First and Fifth Amendments, is substantially overbroad and thus facially unconstitutional. See City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398 (1987) (statutes "that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application"); Thornhill v. Alabama, 310 U.S. 88, 97, 84 L. Ed. 1093, 60 S. Ct. 736 (1940) (a law is void on its face if it "does not aim specifically at evils within the allowable area of [government] control, but . . . sweeps within its ambit other activities that constitute an exercise" of First Amendment rights). Even if the District's goals in effecting a curfew are proper, and even if it is possible to isolate some nucleus of activity against which the Act may properly be directed, the plaintiffs contend that the District may not sacrifice the legitimate constitutional interests of the many to punish the few.

 In framing their case as an overbreadth challenge, the plaintiffs seem to ignore the fact that the overbreadth doctrine is essentially a jus tertii device; it evolved in order to permit one properly charged under a statute to raise the First Amendment rights of others, not charged, whose associational or expressive rights might be chilled by enforcement of overly broad legislation. However, when, as here, the plaintiffs are themselves engaged in protected activity -- when the challenged statute would have no greater impact upon the rights of non-parties than it would have upon the rights of the parties before the Court -- there is no need to employ a traditional overbreadth analysis. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801-02, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984); NAACP v. Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984); Brandt v. State Farm Mutual Auto Ins. Co., 693 F. Supp. 877, 881-82 (E.D.Cal. 1988). See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985) (traditional overbreadth analysis inapplicable where "the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish"). The inapplicability of the overbreadth doctrine is particularly acute in this case, where a plaintiff class has been certified which, in essence, includes everyone who might be affected by the Act. *fn15"

 The plaintiffs' effort to shoehorn traditional overbreadth analysis into this case is essentially an attempt to secure a particular remedy: facial invalidation of the Act as a whole. However, the plaintiffs need not rely upon a traditional overbreadth analysis to achieve this result. If the Act so egregiously intrudes upon constitutional interests that it is impossible to segregate permissible applications from impermissible applications, see Sec'y of State of Maryland v. Munson, 467 U.S. 947, 965-68, 81 L. Ed. 2d 786, 104 S. Ct. 2839 (1984), or if the Act cannot be applied in a way that does not quash constitutional freedoms, see Taxpayers for Vincent, 466 U.S. at 796-97 (1984) (citing cases), then the Court may invalidate the Act on its face, rather than merely as applied. This form of direct "facial" challenge exists separate and apart from an "overbreadth" challenge. Indeed, any other result would have the ironic effect ...

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