Notwithstanding these cases, the District contends that, in light of the Supreme Court's Vernonia decision, Bellotti is no longer the appropriate framework for assessing the fundamental rights of juveniles in the curfew context. The Court is not persuaded by the District's argument. The Court does not interpret the Vernonia decision as standing for the principle of law that minors do not have a fundamental right to engage in the innocuous, legitimate behavior restricted by juvenile curfew laws. Nor does the Court find that the Vernonia decision provides an analysis by which this Court can determine whether minor and adult rights should be treated differently. Accordingly, the Court will apply the Bellotti analysis in this case to determine whether minors' and adults' rights to free movement should be treated in the same manner, vel non, in the context of a curfew analysis.
The first Bellotti factor to be considered is "the peculiar vulnerability of children." Bellotti, 443 U.S. at 634. Contrary to the District's claims, the record submitted to this Court does not establish with requisite clarity that the District's minors under the age of seventeen are particularly susceptible to becoming victims of crime. It can hardly be contested that the crime and violence which have plagued the District in recent years affect all of the District's citizens, young and elderly alike, with no age distinctions or limitations made for either victims or perpetrators. See Waters, 711 F. Supp. 1125, 1137.
The second Bellotti factor is the "inability [of children] to make critical decisions in an informed, mature manner." Bellotti, 443 U.S. at 634. The District argues that the City Council determined that "persons under the age of seventeen are particularly susceptible, because of their lack of maturity and experience, to participate in unlawful and gang-related activities and to be victims of older perpetrators of crime." Def. Prop. Find. of Fact at 14. In Bellotti, the Supreme Court reasoned that "the States may validly limit the freedom for children to choose for themselves in the making of important, affirmative choices with potentially serious consequences." Belloti, 443 U.S. at 635. There are, however, significant distinctions between the circumstances in Bellotti and the facts and issues surrounding the curfew law considered by this Court. As Judge Richey of this Court pointedly noted in Waters, "the decision to either stay inside or roam at night simply does not present the type of profound decision which Bellotti would leave to the state." Waters, 711 F. Supp. at 1137. This Court concurs.
The final Bellotti factor is "the importance of parental control in child-rearing." Bellotti, 443 U.S. at 634. The District argues that the curfew law's restriction on minors' movement after 11:00 p.m. on weeknights, and 12:00 midnight on weekends, reinforces parental authority and home life, and encourages parents to actively supervise their children. While the Court is well aware that the City Council, in enacting the curfew law, determined that a nocturnal curfew would "aid parents and guardians in carrying out their responsibility to exercise reasonable supervision of minors entrusted in their care," D.C. Code Ann. § 6-2181(3), the Court is troubled by the implicit assumption underlying this goal -- that parental control over activities of children in the District has regressed to the point where intervention by the City Council must replace the authority and discretion of the District's parents. Neither the District nor any amicus has proffered any persuasive evidence to support its argument to the contrary. While some parents in the District undoubtedly have abrogated their parental responsibilities, this Court does not have before it any record evidence that most parents in the District are unable to control or protect their children. Thus, this Court would be remiss in putting its imprimatur on a law that impacts significantly on thousands of its law-abiding citizens based upon a mere assumption that a majority of the District's parents require the city government to second guess their parenting decisions.
Having applied the Bellotti factors, the Court is not persuaded that, in the context of a curfew law, there are legitimate grounds for treating minors' fundamental right to free movement differently from those of adults. Accordingly, the Court concludes that the District's curfew law must be examined under the strict scrutiny standard.
Fundamental Right of Parents to Direct Their Children's Upbringing
The Court is also of the opinion that the strict scrutiny standard is implicated by the curfew law's intrusion upon parents' Fifth Amendment rights to direct their children's upbringing. See Belloti, 443 U.S. at 639 n.18. Given the guarantee of a "constitutional parental right against undue, adverse interference by the State" into family matters, the District can not advance a plausible argument to the contrary. Id. The District and amici contend that any infringement upon parental rights is "minimal" and does not render the curfew law unconstitutional. As the plaintiffs note, however, the District and the amici, without citation to any controlling authority, "invite this Court to draw the extraordinary conclusion that every parent who allows his or her child to be away from home during curfew hours without the supervision of an adult over twenty-one has, ipso facto, 'abdicated parental authority,' is guilty of 'neglect,' and has failed in the 'exercise of parental responsibilities.'" Def. Mem. at 35; U.S. Mem. at 25.
The declarations filed by parents in this case poignantly demonstrate that, under the curfew law, parents may not choose to allow their minor children to see a movie, participate in an athletic or artistic activity, or enjoy some other educational activity, even with their permission or even if the minor is accompanied by a family friend or older sibling who is mature and responsible but has not reached the age of twenty-one. Moreover, parents may not permit their children to participate in early morning sports practices; ask their children to walk pets early in the morning; or permit their children to return from a friend's home after late night studying. These intrusions into the authority of parents to make reasonable rules for their children, and to teach their children to mature into responsible and self-reliant adults are an infringement upon parental liberty that also demands the highest degree of review that the Constitution allows. Accordingly, in light of the curfew law's powerful impact on the constitutional rights of minors and adults, the Court will examine the District's curfew law under the strict scrutiny standard.
To survive strict scrutiny, the curfew law must be "necessary to promote a compelling interest" and be "narrowly tailored" to advance that interest. See Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 1330, 22 L. Ed. 2d 600 (1969). The Court is persuaded that, in enacting the curfew law, the City Council was motivated by a compelling governmental interest in protecting juveniles and other persons. The crime and violence which have plagued the District in recent years affect all of the District's citizens, young and old alike. However, the record presented to this Court does not establish that the District's minors are more likely than adults to be victims or perpetrators of criminal acts. Nevertheless, generally speaking, the District has a great interest in reducing juvenile crime and victimization and ensuring minors' matriculation into productive adult citizens. Thus, the Court concludes that, in enacting the curfew law, the District was motivated by a compelling interest to reduce juvenile crime and victimization. See Waters, 711 F. Supp. at 1139.
The second prong of the strict scrutiny analysis, however, is problematic for the District. Although the District has shown that it has a compelling interest in protecting juveniles and other persons, the District has failed to demonstrate that its curfew law is narrowly tailored to further that interest.
As the Fifth Circuit in Qutb recognized:
to be narrowly tailored, there must be a nexus between the stated government interest and the classification created by the ordinance. This test "ensures that the means chosen 'fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate."
Qutb, 11 F.3d at 493 (internal citation omitted) (quoting City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 493, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854 (1989)). In other words, to survive a strict scrutiny analysis, there must be some evidentiary nexus between the juvenile crime and victimization problems and the curfew. In the Court's view, no such evidentiary nexus exists on the record assembled before it.
The District contends that the purpose of the curfew law is (1) to reduce the likelihood that minors will be the victims or perpetrators of criminal acts during the curfew hours; and (2) to aid parents or guardians in carrying out their responsibility to exercise reasonable supervision of minors entrusted to their care. D.C. Code Ann. § 6-2181(1)-(3). Further, the District claims that the law is narrowly tailored for two reasons: (1) the statistical data presented to the Court addresses the compelling state interest in reducing juvenile crime and victimization, and (2) the curfew law's eight statutory defenses allow the District to accomplish its goals through the least intrusive means. The Court will address each proffered reason.
The District argues that the following statistical data supports the constitutionality of the curfew law. First, the District relies upon the 1995 Kids Count Data Book, which ranks the fifty states and the District of Columbia in terms of juvenile crime and records state profiles of children's well-being in various categories. According to this book, between 1985-1992, the District was the jurisdiction with the highest juvenile violent crime arrest rate per 100,000 youth. Second, the District relies upon a report by the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, which reports that in 1992, 1.55 million violent crimes were committed against juveniles nationally, ages twelve through seventeen. Third, the District relies upon the data from Federal Bureau of Investigation's ("FBI") Uniform Crime Reporting Program which show that nationally, juvenile arrests increased between 1988 and 1992 at a rate greater than the arrest rate for adults. Fourth, the District relies upon information in the District of Columbia Courts' Annual Reports from 1990 to 1994. These reports, the District argues, show an increase in the number of new juvenile referrals in both the area of "Acts Against Persons," and "Persons in Need of Supervision." All of these statistics, the District contends, show an increase in juvenile arrests in the District over the past several years. Fifth, the District also relies upon statistical data from other cities
with curfews, which arguably demonstrate a decrease
in juvenile crime and victimization after enactment of a curfew law. It is significant to note that the record does not show that any of this statistical data was ever submitted to or considered by the City Council prior to its enactment of the curfew law.
While the District and amici submit to the Court a plethora of statistics that address juvenile crime and victimization in other cities, they present only scant statistical information on crime in the District committed by and against minors under the age of seventeen. Moreover, those statistics that actually do address juvenile crime and victimization in the District are flawed. First, the statistics refer to juveniles, which includes those persons under the age of eighteen. Since the District's curfew law applies to minors, defined as those under the age of seventeen, these statistics are overinclusive, and hence, do not address how, if at all, the curfew law is narrowly tailored to further the District's compelling interest in protecting minors under the age of seventeen. Another flaw is that the statistics are not broken down to show the time of day or night an incident occurred and the ages of the perpetrators or victims.
Finally, the District contends that these statistics indicate a decrease in juvenile arrests by comparing the period July 7, 1995, through September 30, 1995, with the same period in 1994. As plaintiffs maintain, however, and the Court concurs, the District has failed to account for other possible variables in arrest statistics other than the alleged effectiveness of the curfew law. For example, the District readily admits that fewer police officers were on the police force in 1995 than in 1994. Fewer overall officers could, in the Court's view, naturally result in fewer overall arrests. Moreover, the budget of the Metropolitan Police Department ("MPD") has diminished and limitations have been placed on police overtime pay. These factors may have also contributed to fewer arrests. Plaintiffs also presented uncontroverted expert testimony corroborating current statistics which indicate that most juvenile crimes and victimization occur in the afternoons and decline throughout the day. In this regard, a large percentage of these events occur at home, and involve family, friends and acquaintances; such incidents are also unlikely to be impacted by the curfew. Finally, the District ignored available statistics that show that more than ninety percent of all juveniles committed no crimes at all and were not arrested at night or any other time. According to the FBI's 1992 National Crime Statistics, it appears that less than one-half of one percent of juveniles were arrested at any time for violent offenses, and only five percent were arrested for any offense.
Nevertheless, the Court is persuaded that the statistical data provided by the District and the amici show a disturbing incidence of juvenile
crime and victimization across the Nation. As will be demonstrated, however, the vast majority of this information does not persuade the Court that a factual predicate exists on the record before it to warrant the imposition and intrusion of a nocturnal curfew law in the District that would prohibit thousands of law-abiding minor citizens, from being on the streets, in public places, or on the premises of a privately-owned business in the District, during curfew hours. Further, the litigation proceedings before the Court, which enabled the parties and the Court to proceed on a record developed over several months, highlight the failure of these statistics to support the District's argument that: (1) the curfew law is narrowly tailored to serve the government's interest in the least intrusive manner; and (2) an evidentiary nexus exists between the curfew law and the juvenile crime such that the curfew law survives strict scrutiny.
For example, during the hearing on the cross-motions for summary judgment in April of this year, the Court inquired about the statistical data the City Council relied upon in enacting the curfew law. In response, the District's counsel referenced the Kids Count Data Book and recited the statistics about the District provided by this publication. Notwithstanding counsel's representations, the legislative history of the curfew law of 1995 is silent with respect to the City Council's consideration of either this book or the statistics set forth therein. The Court then asked the District's counsel whether these serious crimes, referenced in the book, were committed during the curfew hours, to which the attorney responded: "the breakdown did not break down curfew hours." Transcript ("Tr.") at 39, lines 22-25. In response to the Court's question: "isn't that significant," the District's counsel answered: "certainly it is significant." Id. Later during the motions hearing, the Court addressed this issue further and the following exchange ensued:
Court: All right, so the City Council considered that evidence and . . . what else?
Counsel: They considered juvenile victimization and crime statistics provided by the FBI which document and reflect that the District of Columbia has serious problems in the area of juvenile crime.