The opinion of the court was delivered by: SULLIVAN
The District argues that, applying either the rational basis test or the strict scrutiny test, the curfew law is, in either case, constitutional because it is not vague and overbroad and does not infringe upon any due process or fundamental rights of any of the plaintiffs. Moreover, the District claims that the law does not violate equal protection guarantees because it is narrowly tailored to serve the District's compelling interest in: (1) protecting children from becoming victims or perpetrators of crime; (2) assisting parents to exercise their supervisory responsibility over minors; and (3) protecting all persons from what it contends are the dangers posed by unsupervised minors out both late at night and during the early morning hours.
Pending before the Court are the parties' cross-motions for summary judgment. The United States Department of Justice
and The American Alliance for Rights and Responsibilities (the " amici ") have filed amicus curiae briefs supporting the District's argument that the curfew law is constitutional. Upon consideration of the undisputed facts, relevant statutory and case law, and the record herein, the Court holds that the curfew law is unconstitutional because it violates the equal protection and due process rights of the minor plaintiffs and the due process rights of their parents. The curfew law is not narrowly tailored to further the compelling interests of the District in protecting District residents. Accordingly, plaintiffs' motion for summary judgment is GRANTED and defendant's motion for summary judgment is DENIED for the reasons set forth herein.
On June 20, 1995, the Council of the District of Columbia ("City Council") enacted the curfew law, which the Mayor approved on July 6, 1995. The curfew law took effect, after Congressional review, on September 20, 1995; however, the record does not show that any person or commercial establishment has been prosecuted for violating any provision of this law.
Pursuant to the curfew law, persons under seventeen years of age commit an offense if they
[remain] in any public place or on the premises of any establishment within the District of Columbia after 11:00 p.m. on Sunday through Thursday nights (12:01 a.m. during the months of July and August), or after 12:01 a.m. on Saturday and Sunday.
D.C. Code Ann. § 6-2182(1). The curfew stays in effect until 6:00 a.m. every morning. Id.
Indeed, a curfew violation occurs even if the minor is accompanied by a responsible adult who is under age twenty-one and not the minor's parent.
Id. Thus, parents can not authorize any responsible person under age twenty-one to chaperone their minor children in a public place during curfew hours. The law also prohibits any person under eighteen years of age who has a valid District of Columbia driver's license from operating a motor vehicle in the District of Columbia after midnight. Id.; see also D.C. Code Ann. § 40-301(g).
In a curfew law prosecution, a pedestrian minor or motorist may assert as a defense that (s)he was:
(1) accompanied by a parent;
(2) on an errand at the parent or guardian's direction without any detour or stop;
(3) in a motor vehicle, train or bus involved in interstate travel;
(5) involved in an emergency;
(6) on the sidewalk abutting his or her house or the next-door neighbor's house and the next-door neighbor has not complained about the minor's presence;
(7) attending an "official school, religious, or other recreational activity" sponsored by the District of Columbia, a civic organization, or another similar entity "that takes responsibility for the minor," or going to, or returning home from, such an activity; or
(8) exercising First Amendment rights under the United States Constitution.
D.C. Code Ann. § 6-2183(b)(1)(A)-(H).
A police officer, who "reasonably believes" that a person is a minor violating the curfew law, is authorized to ask that person's age and the reason for his or her presence in a public place after curfew. Id. § 6-2183(c)(1). Based on the person's response and other "circumstances" that are undefined in the curfew law, the police officer is then authorized by the curfew law to take the person into custody and transport him or her to the nearest police station. Id. § 6-2183(c)(2). The person then is held in the custody of the Family Services Administration until 6:00 a.m., unless his or her parent or other adult acting in loco parentis escorts the minor home. Id. § 6-2183(c)(3).
A person under the age of eighteen who violates the curfew law by operating a motor vehicle after midnight may have his or her driving privileges suspended for up to one year. D.C. Code Ann. § 40-301(g). A minor who violates the curfew law shall be adjudicated in the District of Columbia Superior Court. That court may order the minor to perform up to twenty-five hours of community service. Id. § 6-2183(d)(4). A parent commits a curfew law offense if he or she "knowingly permits or by insufficient control allows" his or her minor child to violate the curfew law. Id. § 6-2183(a)(2). Such offenses are punishable by fines of up to $ 500, or community service. A parent may also be required by the curfew law to take parenting classes. Id. § 6-2183(d)(1),(2).
Moreover, the owner, operator, or any employee of an establishment commits a curfew law offense if he or she knowingly permits or, by insufficient control, allows a minor to remain in any public place or on the premises of that establishment during curfew hours. Id. § 6-2183(a)(3). It is a valid defense to prosecution that the owner, operator, or employee promptly notified the police department "that a minor was present on the premises of the establishment during curfew hours and refused to leave." Id. § 6-2183(b)(2). A violation of this provision of the law is punishable by a fine not to exceed $ 500. Id. § 6-2183(d)(1).
Plaintiffs challenge the constitutionality of the District's curfew law on a number of grounds, including violation of their equal protection and due process rights.
An equal protection challenge requires that the Court first determine whether the curfew law "operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny."
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S. Ct. 1278, 1288, 36 L. Ed. 2d 16 (1973); see also Plyler v. Doe, 457 U.S. 202, 216-17, 102 S. Ct. 2382, 2394-95, 72 L. Ed. 2d 786 (1982). Plaintiffs argue that the District, through the curfew law, fails to accord the same "equal protection of the laws" to minors under the age of seventeen as is accorded to those persons seventeen and older. Specifically, the plaintiffs contend that the curfew law deprives only members of the former group of their fundamental right to free movement to participate in legitimate nocturnal activities and, therefore, must be reviewed by the Court under the strict scrutiny standard. Moreover, plaintiffs maintain that the curfew law violates the Fifth Amendment due process rights of all parents and guardians to make their own private decisions about how to raise their children in a responsible manner.
Although the District maintains that the curfew law would survive a strict scrutiny analysis, it argues that, since no fundamental rights are implicated, the law must be examined under the rational basis test.
See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40, 93 S. Ct. 1278, 1300, 36 L. Ed. 2d 16 (1973). Thus, the Court begins its analysis with the determination of whether the minor plaintiffs have a fundamental right to free movement and whether the fundamental rights of minors' parents' are implicated.
Fundamental Right to Free Movement
The United States Supreme Court has recognized that the freedom to move about is an important and protected liberty. Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S. Ct. 839, 844, 31 L. Ed. 2d 110 (1972). In Papachristou, the Supreme Court struck down a Jacksonville, Florida, vagrancy ordinance and established that "nightwalking," "loafing," or "strolling," while "not mentioned in the Constitution or in the Bill of Rights," are "historically part of the amenities of life as we have known them." Id. at 164. The Supreme Court added that:
these unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity . . . [and] have dignified the right of dissent and honored the right to be nonconformists and the right to defy submissiveness.
In another case involving a vagrancy statute, Justice Douglas eloquently stated that:
freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful--knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.
Aptheker v. Secretary of State, 378 U.S. 500, 520, 84 S. Ct. 1659, 1670-71, 12 L. Ed. 2d 992 (1964) (Douglas, J., concurring); see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983) (holding that a California vagrancy statute "implicates consideration of the constitutional right to freedom of movement"); Kent v. Dulles, 357 U.S. 116, 124, 78 S. Ct. 1113, 1117, 2 L. Ed. 2d 1204 (1958) ("Freedom of movement is basic in our scheme of values.").
Significantly, the District of Columbia Circuit has also recognized that freedom of movement on city streets is among the most cherished of our fundamental rights. See Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134, 143-44 n.18 (D.C. Cir. 1982) ("That citizens can walk the streets, without explanations or formal papers, is surely among the cherished liberties that distinguish this nation from so many others."); see also Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) ("The right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all -- and to do so whenever one pleases -- is an integral component of life in a free and ordered society."); but c.f. Jennings v. Washington, Case No. 7,284 5 Cranch, C.C. 512, 13 F. Cas. 547, 547 (1838)(holding that the District could impose a curfew upon "slaves, free negroes and mulattoes").
While it is a well-settled legal principle that the right to free movement is a fundamental right generally, see id., or at least with respect to adults, the parties disagree on whether the Constitution extends this fundamental right to minors. The courts which have addressed this issue have not reached a consensus. In the first federal case to address the constitutionality of a juvenile curfew ordinance, the Third Circuit -- while finding that "the rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others" are fundamental with respect to adults -- concluded that these liberties were not "fundamental rights" with respect to minors. Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1253-58 (M.D. Pa. 1975), aff'd mem., 535 F.2d 1245 (3d Cir. 1976), cert. denied, 429 U.S. 964 (1976). The Bykofsky court, having concluded that the ordinance did not implicate the minor plaintiff's fundamental rights, proceeded to apply the rational basis test and upheld the ordinance. Bykofsky, 401 F. Supp. at 1265-66. Some courts upholding curfew laws have likewise concluded that a minor's right to free movement does not constitute a fundamental right under the Constitution. See In re J.M., 768 P.2d 219, 223 (Colo. 1989); City of Panora v. Simmons, 445 N.W.2d 363, 369 (Iowa 1989).
Yet, other courts, including the U.S. District Court for the District of Columbia, have departed from the Bykofsky reasoning and have held that the Constitution does afford to minors the fundamental right to freedom of movement. See, e.g., Waters, 711 F. Supp. at 1134; City of Milwaukee v. K.F., 145 Wis. 2d 24, 426 N.W.2d 329, 337 (Wis. 1988); Allen v. City of Bordentown, 216 N.J. Super. 557, 524 A.2d 478 (N.J. Super. Ct. 1987); see also Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) (assuming, without deciding, "that the right to move about freely is a fundamental right").
Early in this century, in stark contrast to the present, minors were presumed to possess no legal rights. A minor "was neither recognized philosophically nor legally . . . as having a right to do anything about the vicissitudes of his life, but only to wait the action of others on his behalf or in his best interests." Patricia M. Wald, Making Sense Out of the Rights of Youth, 4 Hum. Rts. 13, 15 (1974). More recently, however, the Supreme Court has rejected that arcane view of minors' rights. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74, 96 S. Ct. 2831, 2843, 49 L. Ed. 2d 788 (1976), the Supreme Court maintained that, in general, "constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority." The Supreme Court further noted that "minors, as well as adults, are protected by the Constitution and possess constitutional rights." Id.; see also Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511, 89 S. Ct. 733, 739, 21 L. Ed. 2d 731 (1969).
The Supreme Court has also acknowledged that the State has a great interest in regulating the activities of, and providing protection for, minors. See Danforth, 428 U.S. at 74, 96 S. Ct. at 2843; Ginsberg v. New York, 390 U.S. 629, 638, 88 S. Ct. 1274, 1279, 20 L. Ed. 2d 195 (1968); see also Carey v. Population Services, Intern., 431 U.S. 678, 693 n.15, 97 S. Ct. 2010, 2020 n.15, 52 L. Ed. 2d 675 (1977). Nevertheless, as set forth herein, this great interest does not automatically dilute the constitutional rights of these minors. Rather, even where the constitutional rights of minors are at issue, the District must narrowly tailor its laws such that these rights are limited in the least restrictive manner.
The District and the amici rely on the Vernonia Sch. Dist. 47J case to support their contention that minors do not have a fundamental right of free movement. See Vernonia Sch. Dist. 47J v. Acton, U.S. , 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995). In Vernonia, the Supreme Court held that random urinalysis drug testing of student athletes violates neither the Fourth nor Fourteenth Amendments to the Constitution. The District, as well as the amici, cling to Justice Scalia's statement that "traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination -- including even the right of liberty in its narrow sense, i.e., the right to come and go at will." Id. at 2391.
The District and the amici fail to mention, however, that Justice Scalia, writing for the majority, twice noted the important factual context within which that case arose -- a context which distinguishes Vernonia and precludes its applicability to the present case. Justice Scalia made clear that: "central to our view of the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster." Id. Justice Scalia also emphasized that "the most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care." Id. at 2396. Undoubtedly, the Vernonia case involved the limitation of the rights of children while in state custody (as opposed to parental custody) by means of their attendance in their school classrooms. Thus, the District's request that the Court interpret the Supreme Court's decision as implying that minors, even while not in the custody of the state, do not have a fundamental right of free movement, invites the Court to read the Supreme Court's decision too broadly. The Court declines to do so.
The Court is persuaded that minors who are not in the custody of the State possess a fundamental right to free movement to participate in legitimate activities that do not adversely impact on the rights of others. See Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S. Ct. 2831, 2843, 49 L. Ed. 2d 788 (1976); see also Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511, 89 S. Ct. 733, 739, 21 L. Ed. 2d 731 (1969). The Court readily acknowledges, however, that a minor's right to free movement is not without limitations and that, in some circumstances, a minors' right to free movement will not be treated in the same manner as the right of adults. See Prince v. Massachusetts, 321 U.S. 158, 170, 64 S. Ct. 438, 444, 88 L. Ed. 645 (1944) (stating that "the power of the State to control the conduct of children reaches beyond the scope of its authority over adults"); see also Note, Assessing The Scope of Minors' Fundamental Rights: Juvenile Curfews & The Constitution, 97 Harv. L. Rev. 1163, 1166 (1984). Nonetheless, as recognized previously by this Court, when government undertakes to limit the right to freedom of movement in some manner, "it must act gingerly; it must do so in a manner that is narrowly focused on the harm at hand, as well as sensitive to needless intrusions upon the constitutional interests of the innocent." See Waters v. Barry, 711 F. Supp. 1125, 1133 (D.D.C. 1989).
In Bellotti v. Baird, a case involving a challenge to a Massachusetts statute that required parental consent before a minor could obtain an abortion, the Supreme Court articulated three factors that, when applicable, warrant the differential treatment of minors' constitutional rights: "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." 443 U.S. 622, 634, 99 S. Ct. 3035, 3043, 61 L. Ed. 2d 797 (1979). Significantly, a number of cases addressing the constitutionality of juvenile curfew statutes have considered the Bellotti factors in determining whether the rights of minors and adults should be treated alike in the curfew context. See Johnson v. City of Opelousas, 658 F.2d 1065, 1073 (5th Cir. 1981); see also Waters, 711 F. Supp. at 1136-37; McCollester v. City of Keene, 586 F. Supp. 1381, 1385-86 (D.N.H. 1984); but see Qutb v. Strauss, 11 F.3d 488, 492 n.6 (5th Cir. 1993)(finding it unnecessary to conduct full Bellotti analysis when all parties agree that the state's interest in enacting a juvenile curfew ordinance is compelling). A few courts also have applied Bellotti to determine whether minors' rights are fundamental. See In re J.M., 768 P.2d 219, 223 (Colo. 1989); City of Panora v. Simmons, 445 N.W.2d 363, 368-69 (Iowa 1989).
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:
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 ...